The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-10-27

that neither the law under which the de-
iendants organized, nor any other statute
OF tennessee, confers such power in ex-
press terms or by necessary implication,
and the defendant must at all events show
such authority. The Taxing District is
only trustee for the public OF the streets
OF the city, and its contract with the de-
PENDANT did not and could not legally give
this authority. The rule OF law is settled
that the right of railroad company to
cross or pass along highway does not in
clude the right TO build permanent struct-
ures upon 1t or to use it for freight yard,
or any exclusive purpose, but is limited to
reasonable use by crossing, passing and
repassing consistent with the earlier pub
lie use. Pierce on X, r., p. 243, and
cases cited n. 3.
In Railroad company vs. Adams 3
Head, 500, 1t was held to be the duty of a
railroad to leave the streets OF city
dis nearly free from distractions as they
can, and for this purpose to spare no rca-
sonable expenditure OF money or labor,
etc.
Now, in this case the complainant
charges that this excessive switching near
his property is unwarranted by law; for, in
looking TO the statutes of the State, and
even the contract with the city, find no
grant of power which expressly or by
necessary implication warrants it. pierce
on Railroads, p. 243, and cases.)
The defendant has had more than n
month since the motion was made to con-
tradict the facts alleged in the bill by affi-
davits (Which in case OF irreparable
damage might have been considered), and
has not done so. The case made by the
bill is not one where turnout to connect
with station is used, nor one in which
the highway is used for making up trains
and shifting cars to reasonable extent
and in manner consistent with other
lawful modes OF using it, but one in which
the defendant has converted the highway
into a SWITCHBOARD, and, in effect. monop-
olizcd the street Tor its exclusive purposes.
am inclined TO adopt the sound rule rs |
think the weight OF authority settles it,
that the grant in cases like this should be
strictly construed, and that implied or in
cidental powers are not to be favored, but
II is not necessary now TO decide this
point.
My conclusion is TO grant the prelim-
mary injunction against the fast run
ming Of trains and against the fancy
switching, and also against the use of the
street near compliments property rs a
switchboard. But II would be oppressive
to defendant, and no doubt an obstruction
of business to put the last mentioned feat
ure OF the injunction in operation at once.
Besides, il involves the defendants title 10
use the street for the purpose OF switching;
and, while think II is not probable, II is
nevertheless possible for IL 10 show q good
title, and under such circumstances, in
| the exercise OF the discretion committed
10 me, | will make this branch OF the
Injunction conditional II the defendant
has not the clear legal right 10 use the
street for switching, ii ought TO have q
reasonable time within which 10 make
arrangements for proper switching grounds
and 10 change its tracks.
The underlying principle OF law in con.
trovcrsics like this, and the rule Of action
which should control the defendant in the
exercise OF the power granted to il, and
in the enjoyment OF its franchises is ex
pressed in the maxim: ''Sic utero tho
ut alienam non ledas." II this principl,
is carefully observed by railroads, rs vel
as by private individuals, the resort I,
legal tribunals would be less frequent.
have prepared the order, which will b,
entered on the minutes OF the court.
EsTEs, Chancellor.