St. Louis Southwestern Ry. Co. v. Stuttgart & R. B. R.

TRIEBRR, District Judge (after stating the facts as above). [1] That there is no complete and adequate remedy at law is too clear for argument, for before a hearing can be had in the condemnation proceeding the crossing will have been completed and the mischief done. That courts of equity have power to grant at least temporary relief until there can be a determination of the right of the defendant to cross is undoubted. Montana C. Ry. Co. v. H. & R. M. Ry. Co., 6 Mont. 416, 12 Pac. 916; Railway Co. v. Railway Co., 91 Iowa, 16, 58 N. W. 918; Atchison Street R. R. Co. v. Missouri Pacific Ry. Co., 31 Kan. 66, 3 Pac. 284; National Docks, etc., Ry. Co. v. State, 53 N. [376] J. Law, 217, 21 Atl. 570, 26 Am. St. Rep. 421; 3 Elliott on Railroad's (2d Ed.) § 1125. As stated in Colorado, etc., R. Co. v. Chicago, etc., Ry. Co., 141 Fed. 898, 73 C. C. A. 132: “The aid of such a bill is recognized in courts of equity, and at times is highly remedial and proper to maintain the status quo and stay the hand of the alleged wrongful intruder from doing further acts upon the invaded premises, which if not wholly irreparable would likely produce complications, and inflict' injuries difficult to remedy.” That injunction may lie in cases of this nature has been expressly determined by the Supreme Court of Arkansas in Niemeyer & Darragh v. Little Rock Junction Ry. Co., 43 Ark. 111, and Mountain Park Terminal Co. v. Field, 76 Ark. 239, 88 S. W. 897. [2] To prevent a court of equity from interfering it is not sufficient that there is a remedy at law. It must be plain and adequate, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. Watson v. Sutherland, 5 Wall. 74, 78, 18 L. Ed. 580; Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932; Arthur v. Oakes, 63 Fed. 310, 11 C. C. A. 209, 25 L. R. A. 414; Twin City Power Co. v. Barrett, 126 Fed. 302, 61 C. C. A. 288; Castle Creek Water Co. v. Aspen, 146 Fed. 8, 76 C. C. A. 516; Butler Brothers Shoe Co. v. United States Rubber Co., 156 Fed. 1, 84 C. C. A. 167. Without determining all the questions raised during the argument, there is one matter which in the opinion of the court is conclusive. By the act of the Legislature of the state approved April 28, 1873, provision was made for the exercise of the right of eminent domain by railroads. The act is digested in Kirby’s Digest of the Statutes of Arkansas as sections 2947 to 2958. Sections 2955 and 2956 provide : “See. 2955. Where the determination of questions in controversy in such proceedings is likely to retard the progress of work or the business of such railroad company, the court, or judge in vacation, shall designate an amount of money to be deposited by such company, subject to the order of the court, and for the purpose of making such compensation when the amount thereof shall have been assessed as aforesaid, and said judge shall designate the place of such deposit. “See. 2956. Whenever such deposit shall have been made in compliance with the order of the court or judge, it shall be lawful for such company to enter upon such land and proceed with their work through and over the lands in controversy prior to the assessment and payment of damages for the use and right to be determined as aforesaid.” By an act approved March 20, 1883, digested as sections 2962 and 2963 of Kirby’s Digest, provision was made for one railroad to obtain the right to cross the tracks of another railroad. These sections are as follows: “See. 2962. Every railroad corporation created and organized under the jaws of this state, or created and organized under the laws of aaiy other state or the United 'States, and operating a railroad in this state, shall have the power to cross, intersect, join or unite its railroad with any other railroad now constructed, or that may hereafter be constructed, at any point on its route and upon the grounds and right of way of such other railroad company, with the necessary turn-outs, sidings and switches and other conveniences in furtherance of the object of its construction. And every railroad company [377] wIio.se railroad is or shall be crossed, joined or intersected by any new railroad shall unite with the owners and corporation of such new railroad in forming such crossing, intersection and connection, and shall grant to such railroads so crossing, intersecting or uniting all the necessary facilities for that purpose as aforesaid. “Sec. 2963. If the two corporations cannot agree upon the amount of compensation to be made for the purposes set forth in the foregoing section, or the points or manner of such crossing, junctions or intersections, the same shall he ascertained and determined by a court of competent; jurisdiction in tin' same manner as provided for the ascertainment; of damages for right of way for railroads.” It will be noticed that while section 2955 cxpresssly authorizes a judge in vacation to make an order authorizing a railroad to enter upon lands required for the right of way, section 2963 only confers the power to make an order to cross another railroad on “courts of competent jurisdiction.” The order under section 2955 can he made by a judge in vacation, as all he is required to do is to designate the amount of money to he deposited, but that determination is not final, bul must he ascertained upon final hearing by the court and a jury. The constitutionality of that section was upheld by the.Supreme Court solely upon the ground that it is but an interlocutor],' order, and the final assessment has to be made by a jury, as prescribed by the Constitution. Reynolds, Ex parte, 52 Ark. 330, 12 S. W. 570. } 3 j But if it is attempted 10 cross the tracks of another railroad under section 2963, if the points or manner of such crossing are in dispute, the statute provides that the same shall he ascertained and determined by a court of competent jurisdiction in the same manner as provided for the ascertainment of damages for rights of way of railroads. Under the latter section a very important matter has to be determined in addition to the compensation. The court must determine the point and manner of such crossing. Besides, a power in a judge to act in vacation in a matter of this nature is not only in derogation of the common law, but may prove very detrimental to the rights of the senior railway, and for this reason such a statute should he strictly construed; and, unless it clearly appears to have been the intention of the Legislature as expressed in the act to grant that power to the judges in vacation, judges would not he justified to assume it by implication. The determination of the place and manner of such crossing is of great importance, and, having been once granted and exercised by the railway company, that question would be disposed of, and the only question left for determination at the final trial by the jury would he that of compensation. In Denver & Rio Grande Ry. Co. v. Denver Railway Co. (C. C.) 17 Fed. 867, 869, it was contended, as in the case at bar, that it is competent for the court to allow the defendant to go on constructing ito road subject to such disposition as may be held proper at the final hearing. But the court overruled this contention, saying: “It would be manifestly unjust to the defendant itself to countenance the building of the road now, when it may be that the court will afterwards change its mind in respect to this matter, and require the road to be removed and built somewhere else. What would be said if we should now and here give the defendant permission to go on and build its road as it shall choose, and [378] in six months from this time, on final hearing, declare all of it to he wrong, a mistake from the first, and that it would he the duty of the defendant to take up its track and put it somewhere else. I do not think that any court can go on in that way. This is a matter for final decision and determination, and as such there are questions which can only he considered upon final hearing.” In the opinion of the court a judge in vacation under the statutes of this state possesses no such power, and the order made authorizing the defendant to cross complainant’s tracks at the place designated is therefore coram non judice and absolutely void. To maintain the status quo it is proper that the temporary injunction should remain, but, in order that no injustice may be done, the hearing on the petition pending on the law side of this court to cross will be speeded and set down for trial on May 15, 1911.