The morning call., 1893-08-22

AND COUNCIL.
of an intruder and tres Dasser, and that its
possession wss maintained in part bv
means of a high and strong fence erected
and main tanned across the entire width of
said wharf, which prevented the use thereof
as public street and wharf by the pub
lie, or by any common carrier except the
plaintiff; that the defendant Harrison,
as Superintendent of Streets and in the
performance of his duties and in pursu-
ance of the direction of the Mayor and
Council of the city, on the 9th day of July,
1893, in a peaceable and quiet manner,
and with only such assistance and work
men as were necessary, removed with all
possible care, TO avoid injury thereto. the
said fence aud small frame building or
cabin and its contents from the roadway
OF said Broadway wharf.
The defendants deny that they tore up
railroad tracks except a small portion, and
this only because it was necessary to pre-
vent the plaintiff from blockading the
street with a train of cars brought there
for the purpose.
The defendants also deny that they in
tend to interfere with, or disturb the plain
consistent with the use by the rublic, and
allege an intention by lawful means and
agencies to keep the same free and open
as public highway; and deny the inten-
ton to enable the Davie Transportation
Company to take possession of the prem
iseS.
1t is claimed by the defendants that their
acts were and will be but trespasses, and
cannot be enjoned.
1t is we'll settled that trespasses, as such,
which are susceptible of pecunary com-
pensation will not be enjoined. but it is as
well settled that if they are not so suscep-
tible they will be enjcined.
The immediate premises are wharf, a
necessary connection. it is said, with the
plaintiffs railroad system and an adjunct
of its business, State and Interstate If
this is true it would be hard 10 assign it a
money value. The money worth of a part
OF a great system would be very difficult to
estimate. and it would not be easier if the
boat line is independent of the railroad
system. as alleged by defendants. In such
case who could fix or by what test could
be fixed a money measure of damages to
the plaintiff, if the city Of Oakland should
assume control of the wharf pending the
the purpose to do. and deny its use to the
plaintiff or give it only partial use with
other boat lines Besides, even if.the acts
of defendants are trespasses in the ordi-
nary sense (and so tolcal them is 20 under
rate them and their purpose) they go to the
destruction of the property in the character
in which it is enjoyed, and may be prop
ery enioned. This is clearly decided by
RI
Ch 315. cited by defendants. See also the
n. Y. Printing and Dyeing Establishment
VS.. Fitch, 1 Paige, 81, and Livingston VS..
Livingston. 6 John. Oh. 497, 2 Story's Eq.,
Sec 92S.
But the acts of the defendants are not
trespasses in the ordinary sense, that is,
mere fugitive and temporary intrusious
on another's rights. They are acts OF
ownership, and If executed will amount to
a permanent appropriation of the prop
erty. This right may or not be ultimately
established in the city of Oakland. 1t may
not now be assumed
But what should be the extent of the
preliminary injunction? The defendants
contend that it cannot be made to undo
that which has been done. The plaintiff
contends contra that it should have such
restraint as to permit the restoration of
the property to the condition it was in
before it was disturbed.
In High on Injunctions, section 4. the
rule is laid down as follows: "The sole
object of an interiocutory Injunction is 10
preserve the subject in controversy in its
then condition and. without determining
any questions of right. merely to prevent
the further perpetration Of wrong or the
doing of an act whereby the right in con-
troversy may be materially injured or
endangered. The jurisdiction, therefore.
being exercised to prevent the further con-
tinuance of injurious acts rather than TO
undo what has already been done. or an
interlocutory application for an iniunc-
ton. courts of equity will only act pros
pectively and will inlerpose only such re-
strant as may suffice to stop the mischief
complained of and preserve matters in
statu QuO."
The text is supported AMI illustrated by
several cases. In Murdock's case.
Bland, 461, the action was TO restrain the
erection Of fence and to remove the fence
already erected. which included part of
plaintiffs land. The injunction was
denied as to the fence, which was erected.
the court saving THAT plaintiff asked the
court now and at once to put forth in his
behalf its remedial as we'll as its conserva-
tive powers" and added: '% The
principal object of an injunction in cases
of this kind is TO prevent irreparable in
jury by preserving things in their present
state, but il an injunction were to order
anything pulled down or undone 1t Is OBJ.
vious that 1t might be itself used as a
means for producing that very kind of ir-
reparable injury TO the defendant which
the bill charged him with being about to
perpetrate against the plaintiff
The court said. however, that there
were cases which went to the verge n