The morning call., 1893-08-22

was the assignee of lease of a mill prop
erty granted by the defendant, with cove
nants for the supply of water from canals
and reservoir on the defendants properly.
The allegation was that he had allowed
the reservoirs to be out of repair and had
removed a certain stOpgate. Lord EldOn
expressed difficulty whether it was ac-
cording to the practice Of the court TO
decree or order repairs to be done. but
afterward said: $50, as to restoring the
stopgate the same difficulty occurs. The
question is whether the court can Spe.
cifically order that 20 be restored. think
l can direct il in terms which Will have
the effect. The injunction / shall order
will create the necessity of restoring the
stopgate, and attention will be had to the
manner 10 which he is to use the locks. and
he will find it difficult. apprehend, to
avoid completely repairing these works"
This case. as l have said, was never re-
garded as authority in England, and was
rejected as a precedent in Blackmore VS..
Canal Company q Mylne & Keene's Re-
ports. 1S5) and the principle laid down
that only such restraint shall be imposed
as may suffice to stop the mischief COM
planned of. and where it is to stay further
injury to keep things as they are at
present"
In Farmers Railroad Company VS.. Reno.
etc., Co. (39 F. Smith. 224 Mr.. Justice
Strong said: THE sole object of such an
order Ian interlocutory injunctioD] is to
preserve the subject of controversy in the
condition in which it is when the order Is
made"
In Audenreed vs. Philadelphia and
Reading Railroad Company (68 Penn
sylvanis Statutes. 270) Justice Sharswood.
very able jurist, reviews a number of
cases and quotes with approval the Ian
guage of Justice Strong, supra.
The facts were that the defendants were
the owners of railroads from the Schuyl-
| kill coal regions for transporting coal TO
the river Delaware for shipment for places
outside of the State OF Pennsy al
| fording the only access from some of the
| cOllierieS to the market. The coal was
| loaded on vessels at wharves owned by
the defendants who allotted space to ship
| pers. The space allotted to plaintiff was
taken away from him and allotted to
others. This action was charged as
! Illegal and as practically refusal to allow
| plaintiffs to carry on their business. The
plaintiff prayed, among other things, that
the defendant be restrained from refusing
| facilities TO the plaintiff. and that they be
restrained from allowing others as long as
they refused plaintiff. Practically prayer
against discrimination. The injunction
was denied.
In rendering the opinion of the court the
learned Justice compares preliminary and
! final injunctions, confining the purpose
and Office of the former TO restraint-pre-
! i'm MI inn ic
observed, he said, "by all the cases, both
in England and America" Final injunc-
tions may be made mandatory, command
ing acts to be done, the reason of the dis
| tinction being that preliminary ipjunctions
are granted when the rights of the parties
are in controversy. A final injunction is
granted when the rights of the parties are
determined.
In commenting on Lane vs. Newgate,
supra. which the court said in Mnrd0ck's
case went to the verge of ordering things
undOne, Justice Sharswood condemned
both the manner and extent of the injunc-
ton granted.
He said that it was mot precedent
which ought to be followed in this or anv
other court. A tribunal that finds itself
unable directly to decree a thing ought
direction. Injunction as measure Of
mere temporary restraint is a mighty
power to he welded by one man. 1t would
extend far beyond all safe and reasonable
bounds to permit it TO go further"
The principle of these cases is announced
also in the case of the Northern Pacific
Railroad Company VS.. City of Spokane ct
al. already quoted, found in the Fifty
Ead
plaintiff
This was an action in which the railroad
company had erected a warehouse on what
was claimed to be a public street The
city threatened to remove it. There was
also controversy as to whether the prem
ises were within the fire limits or not, and
hence subject to the order of the city rs to
the kind of erection. The court granted
an injun ction against the city as to the re-
moyal of the warehouse which was on the
premises, but so modified the order as not
to preclude the city from requiring an in
spection of the plans for the erection of
any lew building. and used the following
language:
THE purpose of restraining order
pendente lite in all cases of this nature
is TO preserve property which is the SUBJ
ject of controversy in its existing condi-
| tion until final hearing and determina-
tion of the cause; and the order should be
limited so as to simply preserve the status
QUO and should not give either party an
advantage by proceeding in the acquisition
or alteration of property, the right to
which is disputed, while the hands of the
other uarty are tied.
OF course il is con tended by the plaintiff
in this case that the status quo means the
condition of the property before the dis
turbance. AS we have seen by The au-
thorities his contention cannot be sup
ported.
1t may be said. however. that in all
these cases the Injunction commanded
something affirmative of the defendant,
while in the case at bar the relief prayed
for can be obtained by a simple repressive
power of an order restraining the defend
ants from interfering with the plaintiffs S
property.
This is true. but it could be made true in