Green Bay & M. Canal Co. v. Norrie

RACOMBE, Circuit Judge (after stating the facts as above). Demurrer was interposed to the original complaint, and the points raised thereby were discussed by Judge Townsend in an opinion reported in 118 Fed. 923. He referred to Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888, and Leonard v. Ozark Rand Company, 115 U. S. 465, 6 Sup. Ct. 127, 29 L. Ed. 445, and held that a supersedeas does not suspend the effect of a prohibitory injunction pending appeal. The plaintiff in error here does not question the correctness of that conclusion; so it will be sufficient, on that branch of the case, to refer to Judge Townsend’s opinion. That opinion contains the following: “The parallel which the plaintiff seeks to draw between an action in ejectment and a bill in equity for an injunction fails, for the reason that the judgment in ejectment is such as to entitle the plaintiff prevailing to have the process of the court upon that very judgment carried out affirmatively until the party in possession is actually removed. A supersedeas in such case stays the active force of the judgment. An injunction, on the contrary, does not of itself change the status, or go further than to pronounce upon the rights of the parties and forbid the doing of acts inconsistent with those rights.” The plaintiff, in the hope that it might thereby convince the court that its situation was similar to that of the successful plaintiff in ejectment, amended its complaint by setting forth the locus in 'quo and the proceedings in the Wisconsin courts in much greater detail. It is now contended that the injunction was not merely prohibitory, but mandatory as well; that by the decision of the Wisconsin court “in'effect it was adjudged that the canal company was the owner of the water power, and that possession thereof should be taken from the Kaukauna Company and transferred to the plaintiff.” [898] If the injunction were in fact mandatory, it would be suspended by the appeal and supersedeas; but the argument of plaintiff in error fails to convince us that it is not purely prohibitive. Manifestly it is prohibitive in form. It perpetually enjoins and restrains from drawing any water from the pond" for hydraulic power. It is to be noted that the embankment and the headgates which the' Kaukauna Company had- placed therein were located wholly on property of that company, and the judgment did not profess even to put the canal company into possession of, or in control of, either! All that it was adjudged the plaintiff owned was the right to have the surplus water from the pond flow onward to his premises without being reduced in volume by drafts of the Kaukauna Company. In a purely technical sense only could it be said that the judgment put him into possession of the water power. Moreover, not only .is 'the form of injunction prohibitory, but that form was selected by the court ex industria. It will be remembered that the bill prayed that the Kaukauna Company be commanded “to rebuild and restore to its former state and condition the embankment and drain.” This was a specific prayer for a mandatory injunction. The complaint in the present action shows that the works of the Kaukauna (Company consisted of a series’ of stone piers, with openings between the same, and with movable gates or slides to close such openings, so that, when such slides or gates were closed, the same operated to maintain the mill pond; this constituting what may be termed a substituted embankment, in place and-stead of the original earth embankment. Upon the trial of the action in the Wisconsin circuit, that court found that: “In building its canal, tbe Kaukauna Company has erected and maintained works on the south shore of the river that does the same service that was performed by the embankment mentioned in the deed from John Hunt.” And upon appeal the Supreme Court of Wisconsin said: “Inasmuch as the headgates to the defendant’s canal stop the water as effectually as would an embankment of earth, and the plaintiff is not injured by leaving the gates as they are, a refusal of the injunction prayed is a very proper exercise of the discretion of the court.” In view of this, we fail to see how it can be maintained that the prohibitory injunction which was granted was in fact, or -was intended to be, the mandatory injunction which was refused. It is further contended that because, prior to the decision in the Wisconsin court,'the water was being drawn from the pond through the open gates, the injunction must be construed to be mandatory, as well as prohibitory, on the ground that ⅛ first required the gates to be closed, and thereafter to be kept closed. In our opinion, this distinction is too fine drawn for practical application. The important and controlling feature of the injunction is the compelling of the defendant to refrain in the future from doing the acts complained of. It is not concerned with what he may or may not do to enable himself to compfy with this command thereafter to refrain. It would be a curious rule of construction which would hold an injunction against the use of machinery,' for instance, embodying some patented improvement, to be mandatory if it were served during working hours, when [899] the machinery was in motion, and prohibitory only if it were served at night or during the midday recess, when the machinery was at rest. We find no force in the suggestion of an estoppel resulting from the circumstance that all parties mistakenly assumed that the supersedeas stayed the operation of the injunction. The judgment of the Circuit Court is affirmed.