Louisville Trust Co. v. Cincinnati Inclined Plane Ry. Co.

TAFT, Circuit Judge (after stating the facts). The city asks the court to direct its receiver to surrender to it possession of certain streets in which he is now operating a railway. This would require him to remove the tracks, poles, and wires of the company from those streets, and also to tear down and remove the bridges of the inclined plane over Miami, Dorsey, and Baltimore streets, as well as those parts of the inclined plane trestle and engine house which lie in Locust street. Such an order would be, in effect, a mandatory injunction against the inclined plane company and the complainant, . the Louisville Trust Company. The court always exercises a sound legal discretion in the granting of even a prohibitory injunction, and often declines to make the order, or delays its operation, in view of the balance of conveniency and hardship between the parties. A fortiori is this true in the granting of a mandatory injunction. Such an order in this case would work great injury to the interests of the inclined plane company and the trust company. Negotiations have been opened by the inclined plane company with the board of legislation of the city, looking to the renewal of former grants. The superior court, which in 1893 granted a perpetual injunction against the use by the inclined plane company of the invalid part of its line as a street railway, has suspended the operation of its injunction for six months from December 11, 1896, to permit such a negotiation. The vigor of Judge Smith’s language in granting the suspension leaves no room to doubt that in his judgment the situation of the parties justifies him in withholding his hand, as chancellor, in the enforcement of the decree, until a full opportunity is given to the inclined plane company to obtain, if possible, new concessions from the city. I concur with Judge Smith in this view, and do not think that the time allowed is unreasonable, when one considers the somewhat slow movements of a municipal legislature. It is urged upon the court that such an affirmative order of the kind here prayed for was made upon a receiver in the case of Felton v. Ackerman, 22 U. S. App. 154, 9 C. C. A. 457, and 61 Fed. 225. The circumstances of that case were very different. There the receiver, while operating a railroad, erected a fence across a public highway, under a void order of a road commissioner. He was required by the court to undo the wrong he had unwittingly done. It was no sacrifice of the property in his charge. The fence reduced the number of rail-wav crossings by one, and to that extent lessened the danger of crossing accidents; but its removal caused but a slight change in the receiver’s situation, or that of the railway company’s line which he was operating. So far as the petition of the city asks for affirmative relief against the inclined plane company and the trust company in the form of an order for the removal of tracks, poles, wires, bridges, and buildings, it is denied. But this conclusion by no means disposes of the whole case made by the city’s petition. The court is in possession, by its receiver, of the whole line, valid and invalid. The city can pursue no remedy for the enforce,ment of its rights in the line except by application to this court. Therefore this court has ancillary jurisdiction to entertain the petition, although the city and the inclined plane company are both citi — 313 — zens of Ohio. Compton v. Jesup, 31 U. S. App. 486-524, 15 C. C. A. 397, and 68 Fed. 263. When a court thus takes possession of property by its receiver, it necessarily assumes an obligation to every one interested in it, or affected by its use, either to afford by its own orders every remedy which such person might have to assert his rights had no receiver been appointed, or else to give him leave to pursue such remedy against the receiver as if the receiver were a private person. Compton v. Jesup, 31 U. & App. 486-534, 15 C. C. A. 397, and 68 Fed. 263 et seq. Will this obligation be discharged by the court, if, after denying the city the affirmative relief it prays, it shall maintain the siatus quo, and continue to operate the railway line, valid and invalid, during the period ñxed for negotiation by the superior court? The order directing the receiver to operate the road is, in effect, an injunction against the city’s interference with his use of the invalid portion of the line. It constii utes affirmative and positive protection to the inclined plane company in its occupation of the streets. But it is said that the operation by the receiver of Ihe road does not deprive the city of any remedy to possess itself of the streets in controversy, because its sole remedy is by enforcement of ihe decree of the superior court, and that is suspended for six months, and so this court may properly remain in possession till the injunction of the superior court becomes effective again. It is contendía! that the bringing of the suit by the city, in the superior court, against the inclined plane company, and the procurement of the injunction, constitute such an election of remedies by the city that it can pursue no other to obtain possession of the streets, and that the order suspending the operation of the injunction really enjoins the city from seeking possession of the streets while it is in force. Again, it; is urged that the inclined plane company, under the law of Ohio, has the right, if it cannot agree with the city as to terms upon which it shall have a new grant, to condemn the, right to occupy the streets necessary to restore its former route. 11 is also contended, and cases are cited which are said to sustain the proposition, that equity would enjoin the city from ousting the inclined plane railway company by physical force from the use of streets, though it has been declared to be unlawful, and thus compel the city to confine its efforts to action in the courts. It is further said that the city could not take any steps to remove the tracks and other property of the inclined plane company now, or until April 1st next, because of a general ordinance which forbids the tearing up of the streets to lay or remove railway tracks from November 1st until April 1st. Coming now to consider the points thus made on behalf of the inclined plane company in this order, it may first be said that counsel have not been able to find and cite a ease supporting the view that an order temporarily suspending the order of injunction in effect enjoins the complainant from obtaining his rights in any other lawful way pending the suspension. To say the least of it, the claim is of doubtful validity. See Bissell Carpet Sweeper Co. v. Goshen Sweeper Co., 19 C. C. A. 25, 72 Fed. 545, 560. 2. Nor do I think that the other proposition that the city may not — 314 — oust tKé inclined plane railway from tlie enjoyment of its admittedly illegal occupation of the streets, by using only so much force as is necessary, has been so clearly established as to admit of no doubt; The cases cited by the counsel for the trust company and the inclined pláne company are Easton, S. E. & W. E. P. Ry. Co. v. City of Easton, 133 Pa. St. 505, 19 Atl. 486, and Asheville St. Ry. Co. v. City of Asheville, 109 N. C. 688, 14 S. E. 316. In the first of these cases a street-railway company had an admitted right to occupy a street with its tracks. In a change of grade made by the city, the company had to take up and relay its tracks for a short distance. The city claimed the right to require it to lay a particular kind of raiL The company laid another. The city tore it up, and stopped the operation of the road. The company relaid it, and then procured an injunction against the city’s further interference. The supreme court of Pennsylvania held that an injunction would properly issue against the city, whatever the merits of the controversy over the different kinds of rails, because the city could not, before submitting the question to the courts, take the law into its own hands, decide a doubtful question of law, and, upon the assumption that its decision was right, inflict great loss upon the railway company’s business, especially when the convenience of the public might be seriously affected thereby. The North Carolina case was similar in principle. In both cases the companies were rightfully in the streets, in neither case had the rights of the parties been adjudicated at all in a court, and in each the contention of the city authorities, out of which the action grew, was combated by the railway company. In the case at bar it has been decided finally, and it is not now denied by either the trust company or the inclined plane company, that the grants to the latter to occupy the streets in question have all expired. This would seem to make a broad distinction between the case at bar and those cited. By the common law, a tenant at will, who is notified by his landlord to leave the premises, may be forcibly ejected, without giving the tenant any cause of action, if no more force than is necessary to remove the tenant and his goods is used. Low v. Elwell, 121 Mass. 309. If a man build his house upon a common, a commoner may, after notice, tear down the house, though the man be in it, and this without incurring liability to the ejected person. Davies v. Williams, 16 Q. B. 546. More than this, it has been generally held that an injunction will not issue against threatened trespasses where the complainant cannot allege that he has good title to the property about to be entered upon. Hart v. Mayor, etc., 9 Wend. 571; Schoonover v. Bright, 24 W. Va. 698; Cox v. Douglass, 20 W. Va. 175; Tate v. Vance, 27 Grat. 571. Whether these cases, which nearly all concern the occupation of private property, would apply to the case at bar, may admit of question, but they certainly suggest forcible analogies to it. 3. With respect to the contention that the court ought to maintain ' its receiver in possession of the invalid portions of the line until an ■ appropriation of the same by condemnation proceedings can be had, it is quite sufficient to say that the right of the inclined plane company, to'.'condemn, is very doubtful. Again, the condemnation pro — 315 — 'ceedings would have to include about three-quarters of the route of the inclined plane company within the city. There are cases where a court: has enjoined the owner of land taken as part of the right of way of a railway built and running, from ousting the com-pauy until the latter could institute condemnation proceedings, but they are where the right to condemn is undisputed, and where the land in question is so small a part of the railway line that the delay in payment for the land is an injury very slight, as compared with the loss eutailed by cutting the road in two and stopping its business. 4. The effect of the ordinance of 1876, as to the tearing up of the streets in the winter season, would seem to have little bearing on this case, because, even if it has the full effect claimed for it, there is nothing in it to forbid the city authorities from stopping the operation of the cars of the inclined plane company, and nothing to prevent the taking down of the poles and wires, it admits of serious doubt, too, whether section 5 and section 7 of the general street railwav ordinance of 1879 do not modify the scope of the ordinance of 1876. As will be seen, I am not deciding definitely any of the issues of law raised by the counsel for the inclined plane company. I am only stating what: appears to be sufficient to show that the claims made by them are at least of doubtful validity. This court does not decide that Judge Smith’s order may not operate as an in-j unction, or that the city has the right to abate the wrongful occupation of the streets by the inclined plane company. All that is held is that, if the obstacle of the receivership is removed from the course of the city, it could urge reasonable arguments to sustain both propositions in defense of action taken by it on tbe faith of their validity. In such a case this court ought not, by the possession of its receiver, to prevent the city from taking such course with respect to a remedy as it may be advised. The whole risk of any course taken must he upon the city. If it does a,n act in contempt of the superior court, its agents must answer there. This court assumes no responsibility for any action the city may take, but it is the court’s duty to remove the insuperable obstacle to the city’s exercising a choice of remedies interposed by the receiver’s possession of the invalid portion of the line. In Lane v. Capsey [1891] 3 Ch. 411, which was a mortgage foreclosure, a receiver had been appointed to take possession of the property, including five houses. In a prior action against the mortgagor, brought to enjoin him from erecting any more houses on the right of way of the complainant, and to compel him to tear down parts of those erected, the complainant’s right to a passageway was declared, and the injunction against further building was allowed, but the mandatory injunction was denied, without costs. After the receiver was appointed, the complainant applied to the court in the foreclosure proceeding for leave to abate the violation of his rights. It was contended that the refusal of the mandatory injunction forbade remedy by abatement, and so that no leave should be given. Mr. Justice Ghitty said that, if it was clear that there could be no rémedy by — 316 — abatement, it would be Ms duty to deny tbe leave, but tbat, if there was doubt about it, then he ought to remove the impediment caused by the receiver's possession to any lawful proceeding. He thought that the question of the right to an abatement was nob necessarily foreclosed by the failure to obtain a mandatory injunction, and that it was sufficiently doubtful to require him to remove the impediment of the receiver’s possession. He did this by giving the complainant the right to pursue any lawful remedy he might be advised against the receiver, without being in contempt, including forcible abatement, if lawful. Under the circumstances of this case, I should not care to expose an officer of this court' to a possible contest of force with the city authorities. Some other means must be devised for removing the obstacle of the receiver’s possession to the pursuit by the city.of any lawful remedy it may be found to have. By section 2640 of the Revised Statutes of Ohio, it is provided that the council shall have the care, supervision,- and control of all public highways, streets, avenues, etc., within the corporation, and shall cause the same to be kept open and in repair, and free from nuisances. By subsequent legislation this power, in Cincinnati, is vested in a board of legislation. It is conceded by counsel for the city that before any proceedings could be taken by agents of the city for removal of the inclined plane company’s tracks from the invalid portion of its line by way of abatement as a nuisance, the board of legislation must take action declaring the occupation to be a nuisance, and directing its abatement. This is the same board with whom negotiations are in progress for a renewal of the grants of the inclined plane company,- and it may be inferred that, as long as there is any hope of an agreement between the board and the company, the former will not attempt to resort to radical measures by passing such a resolution. In view of the necessity for action by the board of legislation before any remedy by abatement can be tried, I think I may properly allow the receiver to continue the present operation of the lines until the board of legislation indicates its purpose to resort to abatement, by passing such a resolution as that indicated above. The question whether the public would or should be inconvenienced by practically destroying this line is one the responsibility of deciding which may justly be put upon this chief municipal body, and ought to be ¿voided, so far as possible, by this court. Counsel for the city have argued, from other statutes, that the court ought to hearken to a resolution of this kind from the board of administration, and act upon that; but the powers of that board relied upon relate to remedies by suit, and not to those by abatement of nuisances. And now what must be the court’s order if the board of legislation should pass a resolution declaring the receiver’s operation of the invalid parts of the line a nuisance, and notify the receiver thereof? After that the court could not operate the invalid part of the line. The receiver was appointed to conserve the mortgage interests of the Louisville Trust Company. Ho suitor in equity can ask the court to do an unlawful act through its receiver. Scru- • — 317 — pulous care in this regard is enjoined by statute upon federal courts in the operation of railroads by their receivers under state laws and franchises. In Felton v. Ackerman, 22 U. S. App. 154, 9 C. C. A. 457, and 61 Fed. 225, already referred to, the circuit court: of appeals of this circuit said: “it is of tlie greatest importance that receivers of the federal courts shall not be violators of the state laws; and wherever a court is made to know, in any proper way, that its receiver is violating the law of the state in which is the property of which he has charge, the court must, sua sponte, direct him to cease further violation.” This passage has been pressed upon the court as a reason why the court should immediately, without awaiting action by the board of legislation, order the receiver to cease the operation of the invalid part of the road, because it has been made to know that the company’s grants have expired, and the city is trying, through the courts, to oust it from occupation of the streets. But I cannot regard the company as oilier than a tenant at will in the streets, until (he board of legislation shall indicate its intention to treat the occupation as a nuisance. It is true that the city, by the corporation counsel, under direction of the board of administration, has filed petitions indicating its intention to procure the removal of the tracks, etc., from the streets; but pending the litigation, and the remedial process of the courts, it was understood tacitly that the company should continue the operation of the road as formerly. I think the court may assume such tenancy at will to exist, either until process issues from a, court, or until the board charged with control of the streets shall indicate its purpose not to await judicial action. Had Judge Smith not suspended the order of injunction, I should have enjoined the receiver from operating the invalid portion of the line at once, because the board of administration having control of the litigation had notified the receiver of its desire to enforce its rights under the injunction. As it is, the attitude of the city is to be determined by (lie action or nonaction of the board of legislation. The case; is a different one from a real obstruction of public travel, like that in the case of Felton v. Ackerman. Here the road is affording means of transportation io the public, and is not. in any practical sense, obstructing (he sfreets; and unfil the citv board charged with the duty of declaring nuisances and authorizing their abatement shall take formal action, and assume the responsibility of destroying this instrument of public convenience before judicial process shall issue, this court may treat the occupancy of the streets by the receiver as temporarily acquiesced in by ■(he city, and not unlawful, in an indictable sense, pending negotiations for a renewal of (he grants. When the board of legislation shall act., however, it is not a matter of doubt what the duty of the court will be. Its receiver must cease the operation of the invalid portion of the line. In considering the duty of the court in this case, the circuit court of appeals, speaking by Judge Burton, said: “If the occupation of any of the streets of Cincinnati is no longer lawful, the court should he quick in directing its receiver to reject the rights of the city, and to desist from the operation of such parts of the road as are upon streets — 318 — where the easement has expired, unless the consent of the city for such further operation is first obtained. The federal court must not suffer itself to he used as a means of obstructing the just and legal rights of the city, or less prompt in courteous regard for the judgment of the state court than the absolute necessities of the case demand, in order to prevent injustice to this complainant.” . The language is mandatory upon this court, and I have certainly gone as far as it permits in leniency towards the inclined plane company, in treating the nonaetion of the board of legislation as a tacit consent by the city to the company’s temporary occupation of thé streets. But suppose the board of legislation passes a resolution declaring the use of the streets by the inclined plane company unlawful; what course should the receiver take? He need not take up the tracks, and deliver possession of the streets to the city. To order that would be, as already said, a mandatory injunction, and a remedy the court is ■not inclined to grant. The only other course is to redeliver possession of the tracks and other property now in situ on the streets occupied without right to the inclined plane company. The receiver took possession for the benefit of the mortgagee. I assume that the mortgagee, with the alternative of a removal of the tracks, would prefer a restoration to its mortgagor of so much of the property mortgaged as is in place in the streets in which the grants have expired. But it will be practically impossible to run part of the line without the rest, especially when we consider that included in the property which the receiver must deliver to the company are the bridges over Miami, •Dorsey, and Baltimore streets, and the engine house at the top of the inclined plane. Therefore the trust company would probably prefer that the entire property shall be restored to the inclined plane company, if the latter will consent to turn over to the receiver the net earnings from the operation of so much of the road as it shall be able to operate. The order of the court upon the petition of the city will therefore be as follows: That from and after the receipt by the receiver of a notice from the board of legislation that his operation of the inclined plane railway in any of the streets in which by the decree of the circuit court of appeals the grants owned by said inclined company have expired, is unlawful and forbidden, the receiver is enjoined from operating the railway in such streets, and he is directed to surrender possession of the property of the inclined plane company in place in such streets to said inclined plane company; and it is further ordered that, upon written application filed herein by the Louisville Trust Company, the receiver shall deliver possession of all the remainder of the property of the inclined plane company now in his custody to said company, on the condition, consented and agreed to in writing, and filed herein by said company, that it will turn over to the receiver herein the monthly net earnings from the operation of its property, after payment of the running expenses thereof, including salaries, wages, and supplies. And the receiver is ordered, within two weeks hereof,, to file a full and complete account of the receipts and disbursements for the entire period of his receivership. Each party will pay its own costs in this proceeding. What has been said disposes of the pending questions. I only wish — 319 — to add, in order that my language may not be misunderstood, that I have not intended, in the slightest degree, to advise a resort by the city to violence to enforce its rights in the streets. On the contrary, I think it would be deplorable it the city authorities, not accepting the weighty suggestion of the superior court in its order of suspension, and not abiding the expiration of that order, should foreclose reasonable negotiation, and disgrace the city’s fair name by a course probably leading to a breach of the peace. If the city disregards the suggestion contained in the superior court’s order of suspension, it does so at its own risk, and cannot rely on any approval of such a course by this court. All that this court decides is that, when the city demands the right to pursue remedies to enforce rights in the streets adjudged to belong to it by two courts of last resort, this court will not protect a party which is viola tiong those rights by throwing the shield of its receivership over such violation. It will discharge the receiver, and let the inclined plane company, on the one hand, take the risk of operating the invalid portions of the road, if it chooses, and the city, on the other, that of any course it may see fit to pursue. The relation of this court to the controversy is merely incidental and ancillary, and imposes no duty upon it of distinctly deciding as to the lawful remedies of the parties, if it can free itself from that relation, as it can and will by the order above set out.