Nor

the injury, an injunction is the proper remedy.1 will such carrier be allowed to impose upon certain warehousemen additional charges beyond what are imposed upon others, and it may be enjoined from attempting to levy such charges.

2

§ 101. With regard to the interference of equity in restraint of public nuisances, resulting from railroads, it is to be noticed in the first place that the erection of a railway and the running of cars through the streets of a city or village do not, per se, constitute such a nuisance as will be enjoined in the absence of proof that the railroad is a nuisance in fact.3 Nor will a general averment that the road is a flagrant nuisance suffice in the absence of facts proving it to be such.4 And the fact that the change in the mode of travel thus induced in the street or thoroughfare may have had an injurious effect upon business or rents in such thoroughfare, affords no ground for relief.5 And where a railroad is authorized by the terms of its charter to construct its road in a particular manner, or through a particular street, such construction, being authorized by law, is not a nuisance and will not be enjoined. Even where the road is being built without authority of law, it will not be enjoined at the suit of one who owns no real estate over or adjoining which

1 Id.

2 Id.

3

Lexington, etc. v. Applegate, 8 Dana, 289; Hentz v. Long Island, etc. 13 Barb. 646; Bell v. Ohio, etc. 25 Pa. St. 161.

* Hentz v. Long Island, etc. 13 Barb. 646.

5

Lexington, etc. v. Applegate, 8 Dana, 289.

• Currier v. West, etc. 6 Blatch. 487; McFarland v. Orange, etc. 2 Beas. 17.

it is to pass, and who will not be specially injured by its construction.1

§ 102. Where the corporate authorities of a city are proceeding to open a street through the embankment of a railway, upon the ground that it constitutes a nuisance by obstructing the street, and the railway company, relying upon twenty years possession, enjoins the municipal authorities from proceeding, the right of the city being doubtful, it is not error to continue the injunction until a hearing upon the merits. The question being properly triable by a jury, a court of equity will not assume its functions and decide the issue in advance of a trial at law.*

§ 103. The interest in and use of public streets being publici juris, their appropriation to private or corporate use in the construction of a railway, without authority of law, and the obstruction thus caused to travel, constitute a public nuisance which may be enjoined on behalf of the people. A city, however, in its corporate capacity, has not such an interest or property in the streets and public squares over which a railway is built as to entitle it to an injunction restraining the erection of a road.4 And the construction of a railroad through a city, by authority of the common council, will not be enjoined as a nuisance to adjacent property owners, the right of passage not being obstructed to the public for other purposes.5

1 Currier v. West, etc. 6 Blatch. 487; Davis v. Mayor, etc. 4 Kern. 506.

2

Mayor, etc. v. Georgia, etc. 40 Geo. 471.

3 The People v. New York, etc. 45 Barb. 73.

4 Milwaukee v. Milwaukee, etc. 7 Wis. 85.

'Drake v. Hudson, etc. 7 Barb. 508.

§ 104. Where one under contract with a railroad company which has failed to construct its road, has gone on with the construction of a portion of the route for his own benefit, he may be restrained on the application of owners of land through which the road passes.1 And the fact that complainants in the bill in equity are plaintiffs in an action at law then pending against other parties, to recover damages for past trespasses thus incurred, affords no defense to the bill.2

§ 105. Frequent instances of the interference of equity to prevent the violation of a franchise occur in the case of roads, turnpikes and railways. Actual injury to the franchise must exist before an injunction will be awarded. In Illinois no franchise of an exclusive nature exists, such as the exclusive right to transport passengers and freight between two cities. In some states such charters have been granted, and protected by proceedings in equity, and the granting of injunctions.3

$106. Where town officers are about to deliver to a railway company the bonds of the town, issued in aid of the railway, and are proceeding in violation of the conditions of subscription, they may be perpetually enjoined, on the ground that if the bonds should be negotiated the town might be embarrassed in defending against them at law. But a tax-payer of a town. which has issued bonds in aid of a railway, can not

1 Stewart and Foltz's Appeal, 56 Pa. St. 413.

2 Id.

3 Delaware, etc. v. Camden, etc. 2 McCart. 1; Ibid. 1, C. E. Green, 321; South Carolina, etc. v. Columbia, etc. 13 Rich. Eq. 339; Boston, etc. v. Salem, etc. 29 Gray 1; Boston, etc. v. Boston, etc. 16 Pick, 512.

4 Danville v. Montpelier, etc. 43 Vt. 144.

enjoin the transfer or delivery of the bonds to the officers of the company on the ground that they were not legally elected, they being officers de facto of the company. 1

2

§ 107. Where, as is frequently if not generally the case with interlocutory injunctions, the injunction is merely auxiliary to the principal relief sought by the bill, the dismissal of the bill of necessity works a dissolution of the injunction, ipso facto. Upon the bill being dismissed, therefore, the injunction falls as of course, and without further proceedings.3 So where the bill for injunction is auxiliary to an action at law, on the dismissal of the proceedings at law, the injunction usually shares the same fate. But where a railway company is enjoined from using complainant's land until satisfaction of a judgment obtained against the company for the appropriation of his land, the order for the injunction will not be reversed because of the reversal of the judgment for want of jurisdiction. 5

1 Sauerhering v. Iron Ridge, etc. 25 Wis. 447.

2 Green v. Pulsford, 2 Beav. 72; Coleman v. Hudson, etc. 5 Blatch. 56.

3 Green v. Pulsford, 2 Beav. 72.

4 Phelps v. Foster, 18 Ill. 309.

Sturtevant v. Milwaukee, etc. 11 Wis. 63.

V. TRANSPORTATION COMPANIES.

§ 108. First statutory definition of "railroad corporation." 109. Present definition of the term. It applies to all common carriers by rail.

110. Importance of this classification.

111. Justice of and authority for the same.

112. Obsolete transportation company statutes.

113. No domestic companies now operating in the state. 114. The pioneer transportation company of Illinois. 115. Organization under the general corporation act.

8 108. The first statute of Illinois designed to prevent railway extortion and discrimination defined the term "railroad corporation," as contained in that act, to mean "all corporations, companies or individuals now owning or operating, or which may hereafter own or operate any railroad, in whole or in part, in this state."1 That definition left out of consideration express companies, the Pullman Palace Car company, and the many fast freight lines through which, as a matter of fact, the major part of railway business is conducted.

§ 109. The statute of 1873 remedies this defect. It incorporates in its definition of the term, "railroad corporation," the foregoing, without a change, and in addition thereto declares, "and the provisions of this act shall apply to all persons, firms and companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon any of the lines of railways in this state (street railways excepted), the same as to railroad corporations hereinbefore mentioned.”2

1 Gross, vol. ii, R. R. chap. sec. 147.

2 For full text of this statute see chapter vii.