Standard Oil Co. v. Oeser

Mr. Justice Morris delivered the opinion of the Court: The general inexpediency of appeals from interlocutory orders, although authorized in special cases by the statute, is well illustrated in the present instance by the fact that, before the mandatory injunction provided for in the second clause of the order here appealed from, and which is that which most seriously affects the appellant, could by its own express terms go into effect, testimony might have been taken and the cause heard upon its merits, if ordinary diligence had been had in its prosecution. Yet, as we have said, the case is one in which the statute authorizes an appeal from the interlocutory order rendered in it. We have to deal in the cause with that most unsatisfactory of all legal contests, a battle of affidavits, from which there is almost always absent the test of truth furnished by regular examination and cross-examination of witnesses. And we have likewise to deal with that which is necessarily more or less a matter of discretion with the court below. For the allowance or refusal of an injunction pendente lite is not always to be determined by rigid rules, invariable and immutable in their application; nor does it depend wholly or exclusively even upon the preponderance of evidence, but upon the sound discretion of the court and the inherent probabilities and possibilities of the case under consideration according to its own circumstances, although of course the complainant must always show a prima facie case for it. Reddell v. Bryan, 14 Md. 444; Roberts v. Anderson, 2 Johns. Ch. 202; Sheldon v. Rockwell, 9 Wis. 167; Potter v. Chapman, Ambler, 99, by Lord Chancellor Hardwicke. What we said in the case of The Electric Lighting Company v. The Metropolitan Club, 6 App. D. C. 536, is applicable here. There it was said: “ An injunction pendente lite is [86] only a conservative measure intended to preserve existing conditions and to save all rights until the merits of the controversy can be judicially ascertained by such proofs as the parties may be able to adduce.” And again: “ We should not lightly disregard the action of the court below, or reverse that action, unless it is made very plain to us either that such action was erroneous, or that it is in the interest of justice that it should be .vacated. One who appeals from a merely interlocutory order should therefore show a very strong case to overthrow action intended in its very nature to give the court reasonable opportunity to determine the question of right in the controversy between the parties.” Reference also may he had in the same connection to the cases of Parker v. Winnipiseogee Co., 2 Black, 545; Irwin v. Dixion, 9 How. 28; Great Western Rwy. Co. v. Birmingham, etc., Rwy. Co., 2 Phillips, 602; Andre v. Redfield, 12 Blatchf. 408; Peterson v. Matthis, 3 Jones (N. C. Eq.), 31. Now, while in one aspect of this case a difficulty is presented by the apparent acquiescence of the appellees for five years and upwards in a situation which they now regard as a dangerous nuisance, it is very clear that a condition of things, which common experience shows not to be free from the dangers which they apprehend, may be very greatly aggravated by the construction of new and larger works, and by an increased accumulation of inflammable and explosive materials. It may well be that parties will acquiesce in a small annoyance, while aggravation of such annoyance will constitute an intolerable nuisance such as to justify a recourse to the courts for protection. The statements of the bill of complaint in this regard undoubtedly presents a prima facie case for temporary injunction; and we think that the court below was fully warranted in its assumption that it should prevent for the time the construction of the new works projected by the appellant and preserve the existing conditions until due inquiry should be [87] had into the rights of the respective parties in the due course of legal procedure. But there is in the order of the court below not only the conservative provision stated in the first clause of the order for the preservation of existing conditions, but also in the second clause a provision for a mandatory injunction that has the effect of decreeing a total cessation of the appellant’s business upon its premises after June 1, 1897. For this, we find no sufficient warrant in the bill of complaint. That bill does not state such a cause of apprehension of impending disaster or peril as would justify this extraordinary remedy. The business of the appellant has been carried on for five years and upwards without serious injury to the appellees, and 'without protest from them—certainly without any legal action taken by them to abate the prosecution of the business as a nuisance. There is no ground shown for an immediate and radical change in the situation such as a mandatory injunction of this kind would work. In the case of Cole, etc., Co. v. Virginia, etc., Co., 1 Sawy. 470, Mr. Justice Field said, “that a mandatory injunction •will not be granted upon motion, except where irreparable injury will result before a final decree can be entered.” There is no showing in the present case of any such irreparable injury as likely to result before final decree; and it is not apparent how there well could be, in view of the fact that there has been apparently no substantial change in the situation for upwards of five years, and the appellees during all that time have acquiesced in it. From what we have said, it follows that, in our opinion, the order appealed from should be modified by the omission therefrom of the second clause, and that with such modification it should affirmed. The cause, therefore, will be remanded to the Supreme Court of the District of Columbia, wfith directions to vacate so much of said order as is contained in the second clause, and which purports to [88] enjoin and restrain the appellant from the use of its property, as therein specified, from and after June 1, 1897, and for such further proceedings in the cause as may be just and proper. Each party will pay his own costs on this appeal. And it is so ordered.