Stein v. Bienville Water Supply Co.

Harlan, Justice.

This case is before me upon complainant’s application for an injunction, pending the suit, to restrain the defendant, its officers, agents, servants, and employes, from digging trenches and laying mains and pipes in the streets and public ways of Mobile, for the purpose of bringing and conducting water into that city; from supplying such water to the city and its inhabitants; and from hindering and molesting complainant in supplying that city and its people with water tinder the agreement of December 26, 1840, and the act of January 7, 1841.

The application ought not to be granted in the form asked by the complainant. I do not, at this time, make any ruling as to the true construction of the agreement of 1840 and the act of 1841; for there is sufficient ground, apart from the merits of the case, for my refusal to grant a preliminary injunction to the full extent asked. The affidavits filed by the parties render it doubtful, to say the least, whether the city and people of Mobile have such a supply of water by the Stein works as is demanded by the public health and the public safety. The discretion which the court always has in granting or refusing preliminary injunctions ought to be exercised so as to avoid possible harm of a serious character to the general public. An injunction might do an injury to the public not easily to he repaired. But the complainant is entitled to an injunction restraining the defendant from interfering with or injuring any pipes, mains, or conduits already constructed, orto be hereafter constructed, under the agreement of 1840, confirmed by the act of 1841.

It is therefore ordered that the application of complainant for a preliminary injunction restraining the defendant from supplying the city and inhabitants of Mobile with water by means of pipes, mains, and conduits constructed'by it be denied; but this order is without prejudice to his right, on the hearing of the demurrer to the hill, or at the final hearing, to renew his application for an injunction against the defendant as prayed for in his bill. It is further ordered that an injunction be awarded restraining the defendant, its officers, servants, agents, and employes, from molesting, interfering with, or injuring the mains, pipes, conduits, or other contrivances now constructed, or hereafter to be constructed, for the purpose of supplying the city and its inhabitants with water, pursuant to the agreement of December 26, 1840, between said city and Albert Stein.