Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-12-16

this rule has its exceptions Courts of equity
WI! sometimes substitute bond Of indemnity
tor an injunction, if the ends Of justice will
thereby be promoted and especially if any pub
nc interest may suffer by continuing the in
junction in force pending the litigation.
There arc several cogeat reasons which
should impel us to adopt this latter course in
the present case, if upon examination it is
found to be within our discretion to do So
First-Whatever doubts we may have
upon other questions we have
none as to the absolute right of the respond.
ents to build their railroad along the line spec
ified in their charteran to cross the line of the
complainant at the point in controversy, upon
paying the damages, if it be finally decided
that complainant is entitled to damages, and
without such payment, If, upon final hearing
1t shall be so determined. The most that the
COMPLAINANT is entitled to is its damages;
and If that be amply secured, its rights are
protected.
| Second-The case is peculiar in this: that
| the controversy is not as to the amount of
damages, but as to the right of complainant
to any damages. 1t is not 4 controversy that
can be settled in few days
by the appointment of board of
commissioners to assess the damages of COM
plainant AS already suggested, the right of
complainant to damages may depend upon q
disputed question of fact, which cannot be de-
termined until proofs are taken in the regular
course of proceedings. Enough has already
appeared in the case to satisfy us that some
what protracted litigation may precede the de-
termination of the question Of damages. AL
ready the proceedings instituted in the State
court for the purpose of having the complain
ants damages assessed have been interrupted
and delayed by removal thereof into this
court where they are now pending. We will
not anticipate, much less decide, any of the
hot IN, f1,af ri.
ing. 1t is enough for the
present to say that the controversy
which must precede an assessment and pay
ment of damages in this case, may be pro-
tracted.
Third. The public is interested in the construc-
ton of new lines OF railway, which are indeed
only improved highways The policy of the
law is to encourage and facilitate such con-
struction. The statute Of Minnesota provides
for railroad crossings upon the theory that the
public interest requires that these highways of
commerce and travel should run in different
directions over the State, and that no one line
shall erect barrier not to
manifest from these considerations, and
Others that might be named, that the respond
ent companies ought to be permitted to COM
plete their line across that of the complainant
at the earliest moment compatible with the
full and complete protection of the rights of
the latter; that these rights can be fully and
completely protected by requiring the respond
ents to give bond with approved security to
pay the damages which may be awarded to
complainant, is entirely clear.
But we arc met with question as to the
power of this court in case of this charac-
ter, to adopt this course. 1t Is not necessary
TO cite authority to show that to accept such
bond is within the ordinary powers Of
court of chancery when proceeding according
fn flc crennro1 of pfarify- II IL
mode of proceeding, not only authorized by
the general principles of equity jurisprudence,
but il is in common use in courts of chaucery,
and especially in federal courts. In patent
eases, for example, where it is supposed that
an injunction to restrain the use of patented
article may operate injuriously, the complain
ant is protected by a bond to account for
profits and pay damages, instead of an njunc-
ton. 1t is only necessary to add that
the federal courts of equity admins
ter the same general principles
in all cases and in every State, irrespective of
local laws and State practice. If the court has
jurisdiction to try and determine a case i'll
equity, it must determine it according to these
general principles, which are the same in every
State. United States VS.. Howland, Wheat.
lis; Boyle VS.. Zacharie, Pet. 65S; Never V.
Scott, Is How. 26S; Noonan vs. Lee, . Black
499
1t is not necessary, in view Of these authori-
ties, 10 decide what the power OF a State court
might be in a case of this character; but we
see nothing In the statute which in our judg-
ment ought to be construed to forbid a court
of chancery of the State to accept a
bond under the circumstances disclosed
by the record in this case. 1t may be suggest
cd that a bond cannot be substituted for pay
ment of the damages. After the damages arc
assessed, the amount ascertained, this may be
SO. But the question here is, whether, in a
cac xrho n Ill
probability, be had, and where the right of the
complainant to any damage is matter of dis
pute, depending for its solution upon doubtful
questions of law and fact, court of chancery
may, instead of stopping the progress of a
great work of internal improvement, of gencr-
eral and public, as well as of private impor-
tance, require bond TO be given, and allow
the construction to go on. The statute
itself recognizes the propriety of
substituting bond for the
actual payment of the damages, even after as
essment, in case an appeal is prosecuted, (sec
see. %, chap 81, statutes of Minnesota.)
1t is said to dissolve this Injunction and ac-
cept a bond instead would in effect authorize
the respondents to commit a trespass, if not
a crime, by laying their track across that of
complainant After this court has decided
that upon giving bond the respondents may
extend their track across that of complainant,
and after such bond shall have been given and
approved, the right OF the respondents to so
on with the construction of their line
and to cross that of the complainant will be
no longer open to dispute or question. The
case is before us; our jurisdiction of the par
tics and the subject matter is complete.
The order will be, that the Injunction be
dissolved upon the execution by the respond
ents TO the complainant of a bond, with sure
ties to be approved by judge of this court, in
the sum of $1,000, conditioned that the re-
spondents will pay all damages which may be
awarded or adjudged in favor of complainant,
by reason of the construction of respondents
line of railway across that of complainant.
The injunction being thus dissolved
and the only question at issue in the
courts being as to what amount, if any,
damages shall be paid for crossing the
Northern Pacific track, the st. Paul s.
Manitoba company will at once proceed to
complete it's Barnesville & Moorhead
branch to a connection with its Grand
Forks s. Fargo branch in Fargo. The
bridge across the Red river, from Moor
head to Fargo, is already built, and it
will be but short time before the st.
Paul & Manitoba company will daily run
its trains from St. Paul into Fargo So
much of the work has been done in ad-
vance that there is little more to do than
LAYING about one mile of track