Page:Federal Reporter, 1st Series, Volume 8.djvu/872

868 FEDERAL REFOBTEB. ���LaKE ShOBE & MiCHIGAN SOUTHEEK Ey. Co. V. NeW YoRK, ChIOAGO �& St. Louis Ey. Co. (Circuit Court, W. B. Pennsylvania. September 5, 1881.) �1. Eailboads — EMirrENT Domain— Limitation. �Land alrfeady acquired by one railroad corporation, and held for the neces- sary enjoyiaent of its essential franchises, cannot be condemned and appropri- ated in the usual way by another corporation. �2. Samb— Ultka Vises. �A railroad can only acquire and hold an amount of real estate commensurate with its necessities. �3. Samb — Samb — Presumptions. �Whether or not this lirait has been overstepped 18 a proper subject of judicial Investigation, where the controversy before the court arises from an alleged encroachment by another corporation ; but every reaaonable intend- ment must be made in favor of the corporation that -was the flrst to acquire title �In Equity. Sur motion for a preliminary injunction. �AcHEsoN, D. J. At the late sitting of the circuit court at Erie, I heard and refused a motion for a preliminary injunction in this case. The importance of the controversy is such, however, that a reargu- ment was allowed, and the case has been heard by the circuit judge and myself upon fuller proofs. Of these proofs, however, I may say that they consist in the main of ex parte affidavits, and in some par- ticulars are less full than is desirable. For example, they afford little information as to the extent of the business done at Harbor Creek station. It is true, we have the opinions of respectable and intelligent witnesses as to the requirements of the plaintifi company at that point, but in matters of fact the affidavits are deficient. �In respect to the plaintiff's properties occupied, or proposed to be occupied, by the defendant at Twenty-mile Creek, Sixteen-mile Creek, the Brawley piece, and the gravel pit, we have had no difficulty in reaching a conclusion adverse to the plaintiff's application. �As to the wood-yard at Moorhead's, the case is not entirely clear. But as the answer and the affidavit of Mr. McGrath, the defendant's superintendent of construction, (as we understand them,) declare that the defendant does not intend to take up or remove either of the plaintiff's spur tracks at this place, or in any wise interfere with the plaintiff's use thereof, we think that the present proofs do not make out such a case as calls for a preliminary injunction. At the final hearing, with all the evidence regularly taken before us, we can more intelligently and safely determine the rights of the parties. ��� �