Daily Iowa State Democrat. [volume] (Davenport, Iowa) 1856-1859, 1858-10-23
tero the state Gazette ]
Rock lsDaad DsiARa Caao.

tured the opinion that the Court had moi
decided against the Bridge. Yesterday
the District Court sat at this place. Judge
Love presiding. After having called ths
appearance docket, be delivered the follow
ing opinion against the application for an
injunction:
James Ward Bill in chancery before
va the District Court oi
The Mississippi 4 the United States for
Missouri River the District of Iowa.
Rail Road Go.
OPINION OF THE COURT.
The object of this bill is to abats the
Rock Island Bridge as an obstruction to the
navigation Of the Mississippi river, and q
public nuisance. The motion now before
the Court, however, does not aim at that
object. The question whether the bridge
is public nuisance could not be determined
on the preliminary motion supported by
the ezpayte testimony which has been read.
The question can only be decided at the
final hearing Of the merits and upon depo.
sitions regularly taken.
The defendants have answered within
the rules denying the material allegations
Of the bill. The plaintiff moves the Court
for = special injunction TO restrain the de-
PENDANTS from making certain further erec.
tions intended to repair and strengthen one
OF piers Of the bridge This motion is SUD.
ported by afiidavits taken without notice
or cross examination, all tending to show
that the bridge is q material obstruction TO
the navigation Of the river.
The rule is we'll settled, that when an
answer has been filed. denying the mate
rial allegations of the bill, an INDUCTION can.
not be granted upon affidavits except.to pre-
ven. some impending and i:reparable iu-
jury. This rule is founded in the reason Of
the law. A sworn answer in chancery
when responsive to the bill, is itself evi.
dence 50 strong that it must be overcome
by the testimony Of two witnesses, or by
that OF one witness fortified by circum-
stances. Affidsv,ts can never be used at
oil as evidence except to meet certain pres
sing exgencies which cannot be provided
for by testimony regularly taken. Afiida-
vita are used &c necessitdte and where no
necessity exists they cannot be relied on.
Unless the party moving for the Injunction
is threatened with some impending and ir-
reparable injury. there is no necessity for
resOrtlng to testimony taken without no.
tic. and without the test of cross examina-
ton. Hence the rule stated above.
Now. it is admitted that the Court can
m, Ike no order for removal of the bridge un-
til the final hearing. Indeed the bridge,
even in the event of decree against il.
will probably stand untouched until the
final d. termination Of the cause in the Su-
preme Court. The affidavit reads by the
complainant abundantiy show that the
bridge is material obstruction to nay iga
ton. but none of them afford the slighest
evidence that the de- niger of the navigator
10 passing the draw will be in the least de-
gree increased by the repairing and strength
ening Of the pier, AZ proposed by the defen-
dants. On the contrary. counter sffidsvits
read by the defendants establish the fact
that the additional masonary will in no
vie add to the difficulty Of passing the
draw. This fact seems, indeed, to have
been conceded in the Argument. The
counter sffidavits further show that the
pier in question will probably, if not forth
fled IS proposed by the defendsnts. yield to
the pressure Of the ice at the breaking up
of the liver in the Spring. From ell this it
Is apparent that the plaintiff. as q naviga-
tor Of the river, is threatened with no i'm
mediate and irreparable injury in conse-
quence of the proposed repairs
" it were admissible by the rules of Law
to consider the affidavts read by the plain.
tiff touching the great question involved in
this case, the Court would without hesita-
ton beside that the bridge is most ma
terial obstruction to navigation But upon
the final hearing the case made by these a.
davits may be overruled, and the Court
may be forced by legal testimony to the
conclusion that the bridge is not public
NUISANCE but lawful structure. Suppose
in the meantime, the pier in question should
yield to the pressure Of the ice. how could
the injury to the defendants be repaired Z
The remedy by suit upon the Injunction
bond for the constantly recurring loss re-.
sulting from the delay of trains Of cars in
crossing the river, would manifestly prove
inadequate.
One other consideration has much infiu-
ence with the court in deciding this motion.
1t Is admitted that the bridge itself must
stand until the final determination of the
cause. In the meantime it will be in use.
ana trains containing persons end property
VIII pass over II daily. The interest and
safety OF the public therefore require that
pier which is proved to be insufficient
should be strengthened, and the bridge
thus made 40 secure a. possible.
The motion 10 therefore overruled.
A supplemental bill was Immediately
Aled by the complainant with prayer 70,
an injunction covering other points, and
the hesring thereon is to be had before
Judge Love, at Keokuk, on Monday next
the 25th inst.
A Cincinnati paper notices the last solita
~ banquet of a last "man's club" in tina,
city In thu nholasa .na.o> II ,oao