Arizona republican., 1905-01-13
Supreme Court Grants Writ
 of SuperSedeaS
IT HOLDS HE GROUND
Pending Hearing in Supreme Court of the Injunction Granted in Favor of the Arizona Eastern by Judge DOan Last Fall.


 ! in the supreme court of the territory in
 it's application for a suspension of the l decree of the district court of PinaI
 county entered on Nov. q in favor of
 the Arizona Eastern Railroad com pany.
 The decree of the trial court deciar- ed that the Arizona Eastern Railroad
 company was entitled to the possession
 of the right of way in dispute which
 had. up to that time, been in possession of tha Phoenix & Eastern Railroad | company and over which that company had constructed a railroad and was running daily trains. When the decree of the district court was entered the Phoenix &s Eastern Railroad company asked for a supersedeas or suspension Of it pending appeal. Its request for
 a suDersedeas was based upon three grounds. The Erst was that as a mat ! ter of discretion the district court should suspend the decree for the req son that the Arizona Eastern Railroad company, being without any railroad elsewhere could have no use for the ! eighteen miles of railroad in dispute. I Ai-tiE tt .eOt+-fl tJG d. EEE-lL convenience to the public to leave it for operation | ir the control of the Phoenix & East eTn Railroad company until the merits
 of the case should finally be decided. The second ground stated to the dis ] trict court was that as the effect of : the decree was to put the Phoenix S5 l Eastern company out of the possession which it had enjoyed from the be- ginning, il was mandatory, and that as a matter of law all mandatory decrees 1 changing the property rights of the i parties suspended on appeal.
 The third argument made by the ! Phoenix S Eastern company to the dis trict court was that under the super i sedeas statutes of Arizona it was en- titled to a suspension of the decree as ] q matter of right and that the trial court had no authority to deny it. But the district court ignored these contentious and refused to stay the operation of the decree pending the ap- peal of the Phoenix & Eastern com pany to the supreme court of the ter ritory. At that juncture the Phoenix
 Sa Eastern company filed it's appeal 1 bond iA tAe trial court and thus trans ferred the case to the supreme court, and f Immediately made application to
 the supreme court for an order sus- l EEfluiiiS LiAE utcGGG OL LAl- LaldI court. This application was presented to Chief Justice Kent in chambers on Nov.
 26. The chief justice entered an or der granting partial relief and cOntinu- ing the application until the regular sitting of the court. The application was fully argued before the court Wednesday, and after holding the question under advisement until yes
 terday morning all the contentious of the Phoenix & Eastern company were upheld.
 In the opinion of the court, delivered by the chief justice, it was stated that the equities of the case required that the decree of the district court which was said to be mandatory in effect if not in terms, should be stayed pend- ing the determination of the appeal in the supreme court; for if the Phoenix & Eastern company should finally pre- vail in the litigation, it would be un- able to recover any damages from the Ael7ona Eastern company for the loss Of the use of the property in the mean time as no bond is provided for in such a case, while the Arizona Eastern company would be able to recover un- der the supersedeas bond should the litigation ultimately be decided in it's favor. It was stated, moreover that as the Arizona Eastern company is not situated to accommodate the public by operating the line while the Phoenix & 1 Eastern company is, the public inter ests dictated that the property be left | where it could serve the public needs.
 Chief Justice Kent announcing the | decision, said orally: we have some | doubt as to whether the injunction l contained in the judgment, though per | haps prohibitory is not in fact and ef | feet a mandatory injunction. Although | from an inspection of the judgment and | findings on which the judgment is bas- | ed, it would seem that the judgment | awards possession of the property and | gives to the Arizona Eastern the right to operate trains thereon as if such was already in possession From the papers presented in this ap- plication it appears that as a matter of fact under temporary restraining orders during the pending of the action the Phoenix & Eastern was in posses sion of the property, had completed it's road over the property and was at the time of the judgment actually operat- ing trains thereon, while the Arizona Eastern not only was not in possession but had no track constructed over the ground in question or elsewhere.
 "The findings arc not in terms con of this and we understand these facts are practically not contro- verted. The real result and effect of Inc judgment # carried out will be to transfer the possession and occupancy from the Phoenix 6, Eastern to the Ari zona Eastern. But if it be conceded that the injunction is prohibitory and not mandatory this court has power in its discretion to suspend in a proper ease upon such terms as may be just he operation Of such injunction.
 While the appellant has not present. ed upon it's application the facts as full