The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-10-27
Fancy Switching Cannot be Too Sc
verely Animadverted Upon.
Switching Cars Worse Than Per
manent Structure.
The Taxing District Only Trustes for
the Publican Injunction Granted
Against Fast Running of Trains
and Fancy Switching.

TOau coThpanV
Chancery Court Of Shelby County-Edward Bradley
VS.. The Iron Mountain Railroad Company ct al.
This Is motion for an injunction which
was continued at chambers from Septem-
Der 10 to September 20 in order that the
rule requiring notice to the defendant in
important cases might be complied with.
Counsel have, within the last few days,
submitted their briefs, and now dispose
OF the motion.
The complainant owns q residence lot
g,butting Sixth street, in Memphis, and
his complaint is that the defendant cor
poration, occupying that street with its
railroad, has substantially converted it
into switch yard, wherein the switching
of trains by the running, flving drop and
kick switches is kept up night and day,
and in front OF and near to complainants
lot, by reason OF which his property is
rendered unfit and unsafe for residence
purposes, the lives OF his family endan-
gered, and great clouds OF smoke. cinders,
SCOT and foul gases are constantly gener-
ated. TO the hurt and annoyance of the
family. The bill makes a strong case OF
special injury to the complainant by the
alleged wrongful acts of the defendant.
The consequences involved in a case
like this are so important and far reaching,
and the legal questions so delicate, that |
announce my conclusions on this prelim-
mary motion with much difIidence and
distrust Of my own judgment.
/ am admonished not only by the con-
sideraiion just stated, but 10y the
authorities themselves, to avoid extreme
action and TO be conservative in my
course. In contest like this between
the private citizen who deems his right
invaded by the strong hand Of powerful
corporation, claiming 10 act under legisla-
tive sanction, and the corporation itself
court OF equity, armed with great power,
is called upon TO discharge a very high
and important duty. To avoid on the
one hand the obstruction OF the march OF
progress which the legislative department
Of the government and public policy alike
favor and encourage, and on the other
hand to vindicate and protect the sacred
rights of the humblest citizen against the
encroachments Of power, and above all,
10 do justice 10 everyone, is an exalted
trust that demands the exercise OF
prudence, caution and wisdom on the part
OF the chancellor
~sIt is well settled that when private
nuisance is continuous or recurring 30 that
AZ. action OF law would afford inadeq uate
relief and a multiplicity Of suits is likely
To ensue, or " hen a private individual IL
laboring under special injury distinct
from that Of the people nj large by reason
Of a public nuisance, n court OF equity will
interpose at the suit OF the individual by
enjoining the nuisance. The complainant
here, ~ the owner OF n family residence
abutiing this street, makes case OF private
nuisance, and shows his right TO relief on
the ground Of n private nuisance--not 10
the extent Of the entire street, but only 10
far M he and his property are especially
affected by the wrongful acts complained
Of.
The sole object Of preliminary injunc-
ton being 10 protect the property or right
In the controversy until final hearing on
the merits, a court Of equity will not in
teriere or tnke property out Of the possess
sion Of one party aud put Il In possession
Of another. High on injuctions, section
col. And on motions for preliminary in
functions n court OF equity " avcnse TO adj
Judging the titles 81 the parties 10 the sub.
icct matter Of the litigation.
For the most part the bill involves quiet.
ing Of fragrant abuse Of legal rights on the
part Of the defendant. and not the right
exercise Of legal rights. The question Of
the e~'ct right or title Of the defendant
cou.,...ics In the streets OF Memphis un.
der the general statutes and the contract
with the Taxing Districtto the extent that
Il Ia exercised by the bill should not nov
he adjudgcd. Il is too grave for adjudica.
ton on an ex partc statement Of the iaci'
and on n preliminary motion. But the
running Of trains in front Of or near e
compla nani's abuliing residence at higl
rate Of speed, In violation Of a municipal
ordinance limiting the speed TO six mile.
IN hour, Il q nuisance, both public ant
private, which the court will prevent Ihu
running" drops" flying and kick
switches arc recognized not only anon.
railroad men but by the public an,
the authorities as dangerous ~
the extreme; and the practice
Of switching trains after Thu
fashion In public street in a city canno
be too severely animadycricd upon. Suci
practice u nuisance, both public am
private, and should not bc tolerated. lti
n private nuisance 10 the abutting 10
owners, not only because Of the danger
annoyance aud other evils incident there
90, but because under well csiablishe,
principles, the abuiting lot owner has
valuable interest In the street. whether b,
owns the fec 20 the middle thread therco
or not, with the right 10 Use u for ingrcs
and egrcss. and an obstruction u an inya
sion oi his right and q nuisance. The oh
Hiruction created 10y such switching Of car
and locomotives ~ IL described In this bill
In front OF compliments property,
worse than q permanent structure; Tor u
that case all danger thcrcfrom Is excluded
while continual switching on the stree
involves the greatest danger, and nj th
same time prevents the enjoyment Of CON
plainants clear legal rights
Tho complaint oi the bill against smoke
SCOT. cindcu and nOxiOus gases u show
distinctly 10 be the olIcctoi the coniinuou
switching near 10 compainants residence
and the object u 90 stop the switching an
ihcrrby prevent the effect, ~ that the onl
other independent cause 81 complaint
the continual switching In the street, ora
the bill chancicriEcs u, using said stree
~ a switch yard. and the obstruction
the street with switch stands.
Under the general robust description
the bill Oi the extent 10 which III
evil OF switching and distractions
p carried, Il II difficult Tor the court 10 M
dcrs,and accurately the facts Of the cas-
and Of course 10 apply legal principle
But u u hard 10 conceive OF any legal wi
rant In the dcicUdant to convert publ
street into a swiichyard aud 10 mainta
Instructions like swiich-siands therein.
u no, necessary 10 determine now where
the Legislature had granted this power
tho railroad company. Nv express ten
the grievances Of the complainant wou
be tcearlcl ~ mere incidental or cons