Indian River Steamboat Company, Appellant vs. East Coast Transportation Company, Appellee, 28 Fla. 387

Mabry, J.: The question sought to be presented by the motion to strike the answer of respondents from the files does not .properly arise. The bill was filed against R. P. Paddison, George M. Robbins and Walter S. Graham, doing business as the East Coast Transportation Company. The answer alleges that G. F. Paddison, George M. Robbins and Walter S. Graham composed the East Coast Transportation Company, and that R. P. Paddison was only an employe of said company. It is further stated in the answer that said company was then incorporated under the laws of Florida, but respondents waive the misnomer as to R. P.

Paddison, and the failure to denominate them as a corporation in the bill. While they say they appear in their corporate capacity as the East Coast Transportation Company, in fact it is the answer of respondents individually, as they are sued. Without a hearing on the motion to strike, complainant filed numerous exceptions to the answer and said motion may be considered as abandoned. The exceptions to the answer were filed after the motion to dissolve was made, and pending the consideration of said motion.

It seems that an order nisi to dissolve an injunction under the English chancery practice obtained after exceptions to the answer have been filed, is irregular. Williams vs. Davis, 1 Simons & Stuart, 262; Howes vs. Howes, 1 Beavan, 197. In Gibson vs. Tilton, 1 Bland’s Ch., 352, S. C. 17 Am. Dec., 306, it is said by the chancellor : “Oji the hearing of a motion to dissolve an injunction, objections of every kind to the answer may be made and are then in order. Because the motion itself, in its very nature, is founded upon the correctness and sufficiency of the answer in every particular.

Hence, the plaintiff may, on the very day of hearing the motion, file exceptions to the answer, and have them heard and decided upon. The defendant can have no cause to complain of surprise, because by his motion, he calls upon the plaintiff to show cause why, after having well and sufficiently answered the bill, the injunction should not be dissolved. And having thus planted himself upon the sufficiency of his answer at that time, and for that purpose, he stands pledged to sustain it in all respects; or he must fail in his motion.” In Stitt vs. Hilton, 31 N.

J. (Eq.), 285, it was held that where the answer sufficiently denied the grounds of equity upon which the injunction was granted, it will be dissolved although exceptions to other parts of the answer have been filed. The court said: “The filing of exceptions to an answer is, of itself, no objection to the dissolution of an injunction.

The court will consider the exceptions only for the purpose of ascertaining whether they relate to those parts of the bill on which the injunction was awarded.” The exceptions to the answer in the case now under consideration are pointed specially at the portions setting up the decision of the Eailroad Commission and the location of the dock in question in a public street of the town of Titusville.

The conclusion we have reached in reference to the effect of such portions of the answer on the issue before us, as will fully appear in a subsequent portion of this opinion, makes it unnecessary for us to consider the question of exceptions at all, as they relate to matters which have no bearing on questions settled here. We proceed to enquire, then, into the other matters presented for our consideration upon the appeal.

In so far as the correctness of granting or dissolving the injunction is involved, it is clear that we have to deal only with the matters presented by the record in relation to the Titusville dock, as no injunction was granted as to any other. The appellees, in contending here for an affirmance of the decree of the lower court, in dissolving the injunction, do not question, it seems, the'sufficiency of the bill in point of equities to justify the issuance of the injunction on an ex parte showing.

Upon information of the existence of the bill, and the issuance of the writ, they filed an answer, and upon that moved to dissolve. This they had a right to do, but their motion to dissolve involves the sufficient equities of the bill to justify the writ in the first instance. We will, therefore, enquire if the bill justified the issuance of the injunction. The last case decided by Chancellor Kent, Jerome vs. Ross, 7 Johns Ch., 315, has been recognized as occupying a foremost place on the subject of equitable jurisdiction in matters of trespass.

In this case the remedy of injunction was invoked to restrain a defendant from digging and carrying away rock from plaintiff’s premises, and was denied on appeal by the learned Chancellor. Nothing special was alleged as to the value of the rock, or the uses to which it could be applied. The principle announced here is, that an injunction will not lie to enjoin a mere trespass, where the injury is not irremediable and destructive of the estate, and when the ordinary legal remedy in a court of law will afford adequate satisfaction. In Shipley vs.

Ritter, 7 Md., 408, it is said, that although an injunction will not be granted to restrain a trespasser merely because he is a trespasser, yet equity will interfere where the injury is irreparable, or where full and adequate relief cannot be granted at law, or where the tresspass goes to the destruction of the property as it has been held and enjoyed, or where it is necessary to prevent a multiplicity of suits.

Here an injunction was decided to be proper to restrain the destruction of timber so situated with reference to a dwelling house that it sheltered it from storms and shaded it from the sun and was ornamental to the grounds. A veiy clear view of the chancery courts’ powers in such cases is expressed in the case of Gause vs. Perkins, 3 Jones (Eq.), 117.

It is here said, much difficulty occurs in defining what injury is irreparable. ‘£ The word means that which cannot be repaired, retrieved, put back again, atoned for.” An example is given in this case of the destruction of the noble oaks in the State-house grove. “But the meaning of the word irreparable pointed at by this example, is not that which has been adopted by the courts either in England or in this State. Grass that is cut down cannot be made to grow again, but the injury can be adequately atoned for in money.

Tlie result of tlie cases fixes this to be the rule: The injury must be of a pecular nature, so that compensation in money cannot atone for it; where, from its nature, it may be thus atoned for, if in the particular case the party be insolvent, and on that account unable to atone for it, it will be considered irreparable.” There is nothing in the nature of a dock itself to make the landing of boats thereat a cause for equitable interposition. An injunction for this purpose was granted in the case of the News York Printing and Dying Establishment vs. Fitch, 1 Paige, 97. On appeal Chancellor Walworth dissolved it.

He says, in dissolving this injunction, that “it is sufficient for the decision of the question immediately before the court, that it does not appear that any serious damage or irreparable injury will take place, if the defendants continue to run their boat and land their passengers, as they have heretofore done, until the complainants’ rights are admitted by the answer, or settled on the hearing.

On the other hand, I can readily see that'retaining the preliminary injunction may produce great injury to the defendants, and for which they would be entirely without remedy, if it should finally appear that they were only in the exercise of their legal rights.” The view is expressed in this case that while an injunction may issue to restrain a trespass, there must be something peculiar in the case to sustain the jurisdiction and bring it under the head of quieting possession, or to make a case of irreparable mischief, or the value of the inheritance must be put in jeopardy by a continuance of the trespass.

It has been declared by our own court that “the object and purpose of an injunction is to preserve and keep things in the same state or condition, and to restrain

an act, which if done, would be contrary to equity and good conscience; and it is the the appropriate relief when the remedy at law is subsequent to the injury, and the effects cannot be adequately compensated.” P. & G. and A. & G. C. R. R. Cos. vs. Spratt and Callahan, 12 Fla., 26. While it is said in this case that insolvency alone of the person against whom the injunction is asked is not sufficient to give the court jurisdiction to grant the writ, yet this fact may be taken in connection with other equitable grounds to aid the jurisdiction. Yonge & Bryan vs. McCormack, 6 Fla., 368. In Burns vs.

Sanderson, 13 Fla., 381, it was held that averments in a bill, that defendant had interfered and intermeddled with the real estate described in the bill, and continues to do so, and has and still continues to forbid the tenants and lessees to pay the rent to the plaintiff, and has forcibly entered one of the buildings on the premises, does not lay a foundation for an injunction.

It is said, ‘ ‘ the bill does not allege that irreparable damage or mischief will ensue, nor does it state the facts complained of, so that the court may form its own conclusion in reference thereto.” For all the alleged trespasses and grievances in this case there was an adequate remedy at law, and nothing was alleged to show that irreparable injury would result, and the remedy at law inadequate to fully compensate for it.

It is to be observed in considering the sufficiency of a bill to justify an injunction in cases of trespass, it will not do to simply allege that complainant lias no adequate remedy at law, and that his damage will be irreparable. The courts will not act upon complainant’s opinion, or even his fears, in such matters, but he must state facts in his bill to enable the court to determine whether or not his alleged inj ury will be irreparable.

Tested by the rules applicable to such cases, we think the equities of the bill in the case before us in reference to the Titusville dock are sufficient to justify the issuance, on proper application, of the writ of injunction.

The bill alleges that the complainant company is engaged in operating boats on the Indian river, in the business of carrying freight and passengers, and is under a contract to carry the mails; that it has leased from the Jacksonville, Tampa & Key West Railway Company the portion of the dock and pier at Titusville particularly described in the bill, and has the exclusive right to use the same for the landing of its boats. Not only has it this right, but that it lias been since March, A.

D. 1889, in the exclusive use of said dock and pier, and its offices and headquarters are there; that said dock and pier are inadequate to accommodate fully complainant’s business, and that it has never held itself out as a wharfinger.

The bill also alleges that the character of its traffic business, carrying perishable products, and its mail contract, require complainant to act with great promptness in making connections, and a failure to do so would subject it to forfeiture and heavy penalties; that its winter business is much heavier than in the summer, and that the winter business had set in; was rapidly increasing-, and that all the room on said dock was imperatively demanded to enable complainant to carry on its business, and meet its obligations under its mail contract; that the use of said dock by respondents for airy considerable time would cause delays in loading- and unloading- and possible loss of connections, and thereby cause irreparable damage; and further, that complainant was under contract to transfer and deliver immediately large shipments of freight' and materials which peculiarly tax all its facilities to the utmost, and that any inference with said dock would at the time be es£>ecially injurious.

It is then alleged that respondents have procured one or more boats, propose, and are engaged in, carrying freight and passengers on said river, and that they persist in landing- their steamboats at complainant’s said1 dock through force of threats made by them that if they are deterred from landing, or hindered in anyway in transacting their business at said dock, they would cause to be arrested the agents and employes of complainant, and that for each package of freight or other matter refused to be received upon said dock they would sue complainant for damages, and that respondents threaten to continue daily to land at said dock and to use the same freely for all purposes connected with their business without the payment of wharfage or other charges.

That notwithstanding the lease of said dock to complainant, and its exclusive occupation of the same, all of which respondents have been fully informed, they claim that said dock is public property, and they have the right in common with all persons to all the rights and privileges of complainant in and about the same, and that if respondents are permitted to succeed in freely using and occupying said leased premises, the entire public will also insist in doing So, and the same will become worthless as a franchise and place of business for complainant.

It is further alleged that complainant apprehends that respondents cannot be deterred from using said property except by the daily use of superior force, and that if such force be used, or packages of freight consigned to them be refused, complainant would be subjected to a multitude of vexatious suits, and the use of said dock by respondents -would necessitate the removal of complainant’s boats at times herefrom, and would prevent -it from properly conducting its business, storing its freight, mooring its boats, and would thereby cause it irreparable injury.

Not only would said interference with said dock by respondents cause 'litigation, expense, delays such as seriously to affect its business, prejudice its rights and cause irreparable damage, but that respondents are believed to be insolvent, and the judgments that might be recovered against them would be uncollectable. These averments are sufficient to justify the writ. See authorities above cited, and also Dudley vs. Hurst, 67 Md., 44, 1 Am. State Rep., 368, and note; Burnley vs. Cook, 13 Texas, 586; 65 Am. Dec., 79; Rogers Locomotive and Machine Works vs. Erie Railway Co., 20 N. J. (Eq.), 379.

The motion to dissolve being based upon the answer of respondents, the justification of the decree of the court in dissolving the injunction must be found in the allegations of said answer, as respondents filed no additional evidence. In the beginning of an examination of the answer we must keep in mind that on motion to dissolve, respondents will not be permitted to rely upon new matter in avoidance, in their answer not in response to the allegations upon which the equities of the bill are founded.

It is stated in High on Injunctions, vol. 2, sec. 1481 (3rd ed.), that “no principle of the law of injunction is better established than that where the equity of the bill is admitted by the answer or is not denied, and the answer sets up new matter in avoidance, or contains matter which amounts to a defense, such answer is not equivalent to a denial of complainant’s equities, and the injunction will not be dissolved, but will be continued until a hearing of the cause.” The numerous authorities cited in the notes sustain this proposition. In Yonge and Bryan vs.

McCormick, 6 Fla., 368, it was decided that the court, on motion to dissolve an injunction will look to such facts of the answer only as are responsive to the bill and where a new equity is set up in the answer to avoid that disclosed in the bill, it will not be considered. Vide also McKinne vs. Dickenson, 24 Fla., 366. In their answer respondents admit that they have purchased a steamboat for the carriage of freight and passengers and are landing the same at the said Titusville dock, and that they cannot be deterred from doing so except by the daily use of superior force.

They say that they are landing at said dock for the purpose of receiving and delivering freight to and from the Jacksonville, Tampa & Key West Railway Company, under authority of a decree of the Railroad Commission of the State of Florida, securing respondents in that right.

Respondents then allege in their answer that in July, 1890, they complained to the Railroad Commission of the State of Florida that the Jacksonville, Tampa & Key West Railway Company, a railroad corporation operating a railroad in Florida, discriminated against respondents by attempting to lease the exclusive use of said dock and pier at Titus-ville, which was the river terminal of said railroad company, and that upon their complaint, and after due hearing, said commissioners decided on the 14th day of August, A.

D. 1890, that the charter terminus of said railroad company was the channel of Indian river, to which point said road had been constructed, and that said dock and pier at Titusville are a part and parcel of .the main line of said railroad, and a necessary and indispensable facility which the law enjoins it to provide for the transportation of its business; further, that said railway company by said lease to said steamboat company had attempted to vest in it an exclusive use of said dock, and it was thereupon adjudged that said railroad company was guilty of an unjust discrimination, under sec. 4,

Chapter 3862, laws of Florida, and that it at once desist, and extend to the East Coast Transportation Company the same uses, services, facilities and privileges at the end of said dock as are extended to the complainant company. The decision of the Railroad Commission, a certified copy of which is filed as a part of the answer, is set up therein as a complete bar to the relief prayed in the bill. This decision was based upon proceedings instituted by the East Coast Transportation Company against the Jacksonville, Tampa & Key West Railway Company, and the complainant steamboat company was not a party to it.

While it is determined in said decision, that during the years 1886, 1887 and 1888, the Jacksonville, Tampa & Key West Railway Company transacted all its business at the end of the said dock, and all its river freight was delivered at its freight shed at the end of said dock, and that the said dock was a part and parcel of the main line of the railroad company to which the Jacksonville, Tampa & Key West Railway Company succeeded by lease, and a necessary and indispensable facility for the transaction of its business winch the law enjoins it to provide, at the same time, it was decided by the said comission that it had no jurisdiction of the Indian River Steamboat Company, and no order was made so far as this company was concerned.

It also appears by the said decision that the . Commission was proceeding under the last clause of

section 4,

Chapter 3862, laws of Florida, which provides, that no common carrier subject to the provisions of this act shall “ make any unjust discrimination in the receiving of freight from or in the delivery of freight to any competing lines of steamboats in this State,’" and that they had not prescribed any rules and regulations defining or specifying what would be considered as acts of unjust discrimination under this clause, but deemed it advisable to let each case of alleged unjust discrimination rest upon its attending circumstances.

In the decision set up in the answer, the Commission,.. . on the complaint made, heard the facts and decided against the Jacksonville, Tampa & Key West Railway Company, as above stated. Appellees say that the decision has the force and effect of law so far as their right to land at the said dock goes, and that the failure of the complainant company to allege and show this decision before the injunction was obtained was an imposition upon the court, and a just ground for dissolving the temporary injunction.

On the other hand, the appellant company says that its lease was obtained from the said railroad company before the said decision was rendered; that it was not a party to the proceedings upon which said decision was based, and that the said Railroad Commission had no jurisdiction to adjudicate its rights in any manner whatever. It will be observed that in this portion of the answer the decision of tl^e Commission is set up as a complete bar to the relief sought.

The facts which the Commission found and adjudicated to exist, are not averred, but simply the decision of the Commission is alleged as a sufficient defense to the equities of the bill. Under the rule above announced we do not think the consideration of this portion of the answer comes properly before us. We are considering the correctness of the decision of the court in dissolving the temporary injunction, and the portion of the answer now under consideration is not in response to any allegation in the bill, and sets up new matter in defense of the case made in the bill.

It is not such a negation of the equities of the bill as to be a responsive denial of the circumstances upon which they are based, and hence we are not called upon to pass upon this portion of the answer. Counsel for ap • pellees do not contend that the portion of the answer alleging the dock to be part of a public street, called “Broad street,” in the town of Titusville, is in response to the equities of the bill, and entitled to consideration on the motion to dissolve.

In view of the conclusion, which we have reached on the other allegations of the bill, it becomes unnecessary for us to consider this portion of the answer. What are the other allegations, then, of the answer responsive to the equities of the bill? It is evident that complainant’s equity for the injunction depends upon the validity of its title or right to the dock in question. Confining ourselves to the allegations in reference to the Titus-ville dock, the one in question, we see that the complainant company claims an exclusive right to use, occupy and land its boats at said dock.

Its right to the exclusive use of this dock is derived, it is claimed, by lease from the Jacksonville, Tampa & Key West Railway Company. A copy of the lease is filed with the bill.

The lease covers about' three hundred and ninety feet of the east end of the dock, and by the terms of the lease the railway company “covenants and agrees to maintain the railroad track on said pier and bulkhead, and trestle supporting sajid track, and to furnish proper and adequate facilities for transfer of local freights to and from said bulkhead.” It is further alleged that said leased dock and buildings thereon have been constantly occupied and used by the complainant company for its offices, headquarters and place of transacting most of its general business since the first day of March, A. D. 1889.

Respondents deny that they are seeking to make their headquarters at said dock, but say they are landing there for the purpose of receiving and delivering freight to and from the Jacksonville, Tampa & Key West Railway Company. There is nothing in the affidavits to show that respondents are making any attempt to occupy any houses, or to establish headquarters on said dock. It appears in one of the affidavits that at least two of the complainant company’s boats were moved on one occasion to make room for respondent’s boat to land at said dock.

The landing at the dock by respondent’s boat is admitted, but it is alleged to be for the purpose of receiving and delivering freight to and from the railroad company. Respondents admit the alleged lease from the Jacksonville, Tampa & Key West Railway Company, but they deny that said lease is now in full force and effect, or ever was valid or effectual in law.

They aver that said dock so leased constitutes the charter terminal of said railroad company, and they deny that the sole • object of said complainant company in entering into said lease with said railroad company was- to control premises adequate to the transaction of its business, but they aver that its object therein was also to control the said terminal facilities of the said railroad company on the Indian river at Titusville, and thus to prevent the use of said railroad terminal facilities by any competing line of steamboats that might be put on said river in order to preserve a monopoly of the transportation business on said river, and that the use of said railroad terminal facilities has been denied to respondents and the public since said lease.

Respondents also allege that said lease by the Jacksonville; Tampa & Key West Railway Company to said complainant company is not merely voidable, but the same is utterly void and worthless upon its face as repugnant to the common and statute laws of Florida, and a violation of the charter duties of said railroad company in attempting to exclude the general public from the use of a portion of its road which is a public highway of the State, and a further violation of law in that it attempts to give to said complainant company the exclusive use of said railroad terminal to the exclusion of all other competing lines of steamboats, including that of respondent.

And they deny the allegation that they are not pecuniarily responsible-for any and all damages that they may occasion said complainant company. The mere conclusions of law stated by respondents - in their answer in reference to complainant’s ownership or right to said dock can have no weight in determining the questions before us.

But independent of such statements and of the allegations in reference to the Raiload Commission decision, .and the location of the dock in the public street, the answer denies complainant’s title or right to the exclusive use of the dock, and such denial is based upon the fact that said dock constitutes a portion of the track and terminal facility of the Jacksonville, Tampa & Key West Railway Company and the exercise of the right claimed by the complainant company would have the effect to exclude other competing lines of steamboats from landing at said railroad terminal facility.

The bill discloses the fact that complainant’s right to the doc]?; was derived from the Jacksonville, Tampa & Key West Railway Company, which is a common carrier of freight and passengers, and the lease show's that said railroad company covenanted with the complainant company to keep the railroad track on said dock in repair, and to furnish adequate facilities for landing local freights from said dock.

The answer in effect says that complainant has no right, notwithstanding its lease, to exclude other competing lines of steamboats from landing at said clock, because it is a part of a railroad track, and the terminal facility of a common carrier. William B.

Watson, general superintendent of the complainant company, in Ms affidavit states that he is personally familiar with the objects that . prompted the lease of said dock from the Jacksonville, Tampa & Key West Railway Company; that the main object is truthfully stated in the bill of complaint; and it was not the object of said steamboat company in leasing said dock to control the terminal facilities of saici railroad company, or to prevent the use of said dock by any competing line that might be put on the river, in order to preserve a monopoly; that at the time of said lease there was no opposition line upon said river, nor was there any rumor or prospect that any such competing line would exist; that said dock was not then adequate to the needs of said complainant company, and said railway company did not deem it a good investment for it to expend money in enlarging said dock and keeping the same in good repair for the revenue that could be derived from it; that the terms of said lease were agreed upon between the railway company and complainant company as a fair and reasonable' disposition of said property, and that the complainant company has expended more than three thousand dollars in adding to said dock since it went into possession of the same.

It is also stated in the affidavit that all the dock room was needed for the complainant company in carrying on its business, and that it had never done a wharfinger business. The other portion of the affidavit has no reference to the lease. The other affidavit has no bearing on the subject of the lease. The general rule on the subject of dissolutions of injunctions on bill and answer, prior to

Chapter 1098, laws of Florida, was that when the answer fully denied all the circumstances upon which the equity of the bill was based, the injunction would be dissolved, but this was not an inflexible rule, and the granting and dissolving of injunctions was lodged in the sound discretion of the court, to be governed by the the nature and circumstances of each case. Allen vs. Hawley, 6 Fla., 143; Carter vs. Bennett, Ibid, 214; Yonge & Bryan vs. McCormick, Ibid, 368; Hayden vs. Trasher, 20 Fla., 715. Under

Chapter 1098, laws of Florida, when “ the defendant in his answer shall have denied the statements of the bill, or of the accompanying affidavit, either party thereto shall have the right to introduce evidence in support or denial of the bill and accompanying affidavit or answer, before the injunction or other

summary order shall be dissolved, and the chancellor shall dissolve or continue the order, or may require security according to the weight of the evidence. ’ ’ The old rule is modified by this statute to the extent of allowing either party to introduce evidence in corroberation or denial of the bill or answer, and affidavits before the hearing on the motion to dissolve, and that the chancellor shall then determine the matter according to the weight of the evidence. Sullivan vs. Moreno, 19 Fla., 200; Fuller vs. Cason, 26 Fla., 476, 7 South. Rep., 870.

While the chancellor will ordinarily dissolve an injunction upon an answer denying all the equities of the bill, or where the bill and accompanying evidence are fully met. by the answer and its accompanying evidence, it does not follow as a matter of course to do so in all cases. Where fraud is charged, an illustration is found in the case of Hayden vs. Thrasher, supra, that mere denials of fraud or of fraudulent intent without a full explanation of the facts charged in the bill, will not be sufficient to justify a dissolution of the injunction rightly granted in the first instance.

And so in case an injunction is granted to prevent irreparable injury, the dissolution or continuance thereof rests in the sound discretion of the court, to be governed by the nature of the case. Fuller vs Cason, supra. Are the averments of the answer, given above, sufficient to constitute a responsive denial of the equities of the bill upon which rests complainant’s right to relief ? In the case of Sullivan vs.

Moreno, supra, the complainant alleged that he and his grantor had for more than thirty years owned and possessed certain described parcels of land lying on the bay of Pensacola, and during all of said time had been in the quiet possession and enjoyment of all the rights of a riparian owner, until the defendant wrongfully entered into possession of certain portions of the front of said property out in the waters of said bay, and commenced the erection of certain docks, -which, if jiermitted, would exclude plaintiff from his rights, and do him irreparable injury.

It is also averred that said docks will present navigation and perpetuate a nuisance. Defendant in his answer admitted that complainant had been in possession and claimed to own the land mentioned in the bill, in respect to which riparian rights were asserted, but he denied that said lots ever did extend to the ordinary high tide mark of Pensacola bay, and affirmed that said lots were always bounded on the part towards the bay by a public way, street or common, and exhibited a certified copy of a deed showing that the lots claimed by complainant were bound by said public street, way or common.

It was held that on this bill and answer, in the absence of other evidence, no injunction should have been granted, as the equities of the bill were completely negatived by the answer. So it was said in the cases of Allen vs. Hawley, and Carter vs. Bennett, supra, that a denial of the answer of the circumstances upon which the equities of the bill are founded, will be sufficient ordinarily to dissolve the injunction.

In this connection it may be proper to state that in the affidavits of the general superintendent and agent of the complainant company, interposed after the answer was filed, it is not denied that the said dock is a part of the track and constitutes the terminal facility of the common carrier, the Jacksonville, Tampa & Key West Railway Company.

It is true that one affidavit states that the motive in obtaining the lease was not to secure a monopoly, and exclude competing lines of steamboats from landing at the terminal facility of said railroad company, but the facts set up in the answer in reference to the character of the dock are not denied in the affidavit, and the failure to do so is a circumstance weighing against the complainant company on this point.

If what respondents have averred in connection with their denial of complainant’s title or exclusive right to the dock, be sufficient to destroy the equities of complainant’s bill, we think it is so responsive as may be considered on the motion to dissolve. The remaining question then is, has sufficient been shown to defeat complainant’s equity to have the in junction continued ? It is not to be denied that said railroad company, or said complainant steamboat company, lias the right to erect and maintain docks, wharves and piers as incidental to their business, and hold them or dispose of them as deemed proper.

The bill alleges, and it is admitted, that the complainant steamboat company is a corporation, and that the nature and extent of its business render the erection and maintenance of docks and piers at Titusville and elsewhere on the Indian river necessary, and the light to do so is one of its charter privileges, and under the laws of this State, the Jacksonville, Tampa & Key West Railway Company is authorized to build and maintain docks and wharves as incidental to its business. If either company should erect a dock or wharf for its private use, we know of no law to prohibit it.

At least as the matter is now presented, without any allegation or proof that the exercise of such a right would transcend the powers of such corporations, or that it is the only facility of the kind in the particular place, we cannot hold that they have no such rights. Undoubtedly if either company should erect a dock or wharf, and open it to the public for a general wharfage business, the public woidd have a right to use the same under such reasonable regulations, and upon the payment of such charges as the owner might fix, or as might be regulated by law. Ouachita & Mississippi River Packet Co., vs.

Aiken, 16 Fed. Rep., 870; Cannon vs. New Orleans, 20 Wall., 577; Packet Co. vs. Keokuk, 95 U. S., 80; Transportation Co. vs. Parkersburg, 107 U. S., 691. But we are not dealing with the sole question of ownership or rights in reference to a dock or wharf. It'is true that the bill characterizes the property in question as a dock or pier, and it appears that there are houses thereon occupied by the complainant company as its offices and headquarters, and that said dock has been enlarged by said company by expending over three thousand dollars on it since its said lease.

No doubt there are portions of this said dock to which said company is entitled to the exclusive use. But it also appears that upon this dock is the tracked terminus of a common carrier. The landing at said dock by respondents’ boat for other purposes than delivering and receiving freight to and from said earlier is denied, and complainant company in the affidavits filed do not deny that the railroad track and terminal facility of the Jacksonville, Tampa & Key West Railway Company are located on said dock.

In fact the contract of lease shows that said railroad company covenanted with the complainant company to keep in repair and maintain said track and afford facilities for delivering freight to the latter company. We do not overlook the fact that it is alleged in the bill that there is another dock at Titusville, not owned by complainant company at which respondents can, and sometimes do, land their boat, and that said leased dock does not interfere with the use of said other dock or those that may be constructed on the adjacent property along the extensive water front at Titusville.

It is not alleged, nor is it contended here, that the other dock mentioned or those that may be constructed along the water front would offer respondents ingress and egress to the said railroad track and terminal facility. If it was designed by this allegation to show that respondents have another way of reaching said "railroad on said dock for the purpose of delivering and reciving freight to' and from said railroad, it is too indefinite to accomplish this object. No such effect is claimed for it here.

The real question presented here is, can complainant corporation, engaged in carrying freight and passengers on the Indian river by means of steamboats, rent from a railroad common carrier, its dock on said river on which its track and terminal facilities are located, and exclude others from landing at said terminal point for the purpose of delivering and receiving freight and passengers to and from said common carrier ? This question, we think, must be answered in the negative.

If it be competent to sustain such a contract, the common carrier can select one connecting line of boats, and exclude all others from doing business with it. Such a doctrine would lead to the legalizing of a monopoly, and the sanction of an unfair and. unjust preference between connecting and competing lines of transportation. We do not understand that a common carrier ever had such power as this. In the case of the New England Express Co. vs. Maine Central R. R.

Co., 57 Maine, 188, the railroad company contracted with the Eastern Express Company to give them a certain specified space in the car attached to the passenger train, and to transport their agents and property on certain conditions and agreeing specially that said railroad company would not grant or let any similar space in any car or cars attached to the passenger trains on its road to any other express company or persons during the continuance of said contract. This contract was declared to be void at common law, as being one obviously conferring a monopoly upon the express company.

The Chief-Justice, who delivered the opinion of the court, said : ‘ ‘ Common carriers are bound to carry indifferently within the usual range of their business for a reasonable compensation, all freight offered and all passengers who may apply. All applying have an equal right to be transported, or have their freight transported in the order of their application. They cannot legally give undue and unjust preferences or make unequal and extravagant charges.

Having the means of transportation, they are liable to an action if they refuse to carry freight or passengers without just ground for refusal.” In this case it was said in effect that the common carrier could not escape its common law liability, or avoid the performance of its duties to the public by fencing off a part of a car for the Eastern Express Company. Quoting further the language of this opinion, it is said : “ The very definition of a common carrier excludes the idea of the right to grant monopolies, or give special and unequal preferences.

It implies indifference as to whom they may serve, and an equal readiness to serve all who may apply, and in the order of their application. The corporations derive their chartered rights from the State. They owe an equal duty to each citizen. They are allowed to Impose a toll, but it is not to be so imposed as specially to benefit one and injure another. They cannot, having the means of transporting all, select from those ■who may apply, some whom they will, and reject othere whom they can, but will not carry.

They cannot rightfully confer a monopoly upon individuals or corporations.” In this case the contract with the express company was entered into before a statute was passed in the State of Maine giving all expressmen reasonable and equal terms, facilities and accommodations, and the use of depots, buildings and grounds, for the transaction of their business upon railroads in the State, but the court held that the railroad company had no right before the passage of the act to make such a contract. A contract similar in its nature was held void in International Express Co. vs.

Grand Trunk Railway of Canada, 81 Maine, 92. The same doctrine was announced in the case of Sanford vs. Railroad Co., 21 Penn. St., 378. Judge Lewis says in this case : “If it (the common carrier) possessed this power, it might build up one set of men, and destroy others ; advance one kind of business, and break down another ; and might make even religion and politics the tests in the distribution of its favors. Such a power in a railroad corporation might produce evils of the most alarming character. The rights of the people are not subject to any such corporate control.

Like the customers of a grist-mill, they have a right to be served, all other things equal, in the order of their application. A regulation, to be valid, must operate on all alike. If it deprives any persons of t-lie benefits of the road, or grants exclusive privileges to others, it is against law, and void.” In Bennett vs. Dutton, 10 N.

H., 481, the facts were, that the defendant proprietor of stage coach running daily between Amherst and Nashua which connected at the latter pla.ce with another coach, running between Nashua and Lowell, and thus formed a continuous mail and passenger line from Lowell to Amherst, and onward to Francistown. A third person run a coach to and from Nashua to Lowell. The defendant agreed with the proprietor of the coach connecting with his line that he would not receive passengers who came from Lowell to Nashua in the coach of such third person, on the same day that they applied for passage to places above Nashua.

It was here held that defendant was-bound to receive the plaintiff, there being sufficient room, and no evidence that he was an unfit person, or that he had any design to injure defendant. In Marriott vs. London & Southwestern Railway Co., 1 Common Bench (N.

S.), 499, it was held that an arrangement made by a railway company with the proprietor of an omnibus running' between a station on its railroad and another point, to provide omnibus accommodations for all passengers by any trains on said road, by which the proprietor of said omnibus wuis allowed the exclusive privilege of driving-his vehicle into the station-yard of said railroad for the purpose of taking up and setting down passengers at the door of said railroad office, was a breach of the prohibition against granting unfair preferences.

This decision was made under the statute of 17 and 18 Yict., prohibiting “undue and unreasonable” preference. Such a statute, however, has been regarded in America as declaratory of the common law, and the same result would be reached independent of the statute.. Sanford vs. Railroad Co., supra; 1 Wood’s Railway Law, sec. 195, page 563. See also the following authorities bear ing on this branch of the case: Michigan Central Railroad Co. vs. Burrows, 33 Mich., 6; Rogers Locomotive and Machine Works vs. Erie Railway Co., 20 N. J. (Eq.), 379; Messenger vs. Pennsylvania Railroad Co., 36 N.

J. (Law), 407; Messenger vs. Pennsylvania Railroad Co., 37 N. J. (Law), 531; McDuffee vs. Portland & Rochester Railroad, 52 N. H., 430. The respondents denied that they were insolvent, and there is nothing in, the affidavits on this subject. In determining the propriety of dissolving or continuing an injunction, the Chancellor may not only anticipate the character of the injury that may result to the complainant in the event he should finally succeed, but he can also consider the extent and character of the damage which defendant may sustain by means of the injunction.

New York Printing and Dyeing Establishment vs. Fitch, supra. The proceedings here do not call for a cancellation of the lease from the railroad company to the complainant steamboat company, yet from what has been said, it is evident that the latter company cannot avail itself of said lease to prevent the respondents from reaching the railroad track and terminal facility of the former company. State vs. Hartford & New Haven Railroad Co., 29 Conn., 538. The temporary injunction was dissolved by the Chancellor on bill, answer and affidavits.

His action should not be disturbed, unless we can see that a sound discretion has been abused. The Chancellor not only dissolved the injunction, but dismissed the bill. In dismissing the bill we think there w’as error. The bill alleged that respondents were using and occupying said dock and pier at Titus-ville, and the premises and appurtenances thereto appertaining, and were seeking to make their headquarters thereon, and also the using and occupying numerous otlier docks atotherpoints on said river.

The injunction prayed was to restrain respondents from such use of said docks, and from making them the usual place for landing their boat, and that complaint be decreed the undisturbed and undivided possession of said docks. No injunction was granted as to any of the docks except the one at Titusville, but respondents answered, tendering an issue upon the averments as to the other docks. They deny that they are making their headquarters on the Titusville dock, or using the same otherwise than as a landing at the railroad terminus for the purpose of receiving and delivering freight from and to the said railroad.

It was proper, we think, to dissolve the injunction restraining respondents from landing their boat at the Titusville dock, under the circumstances; still the bill states a case which would, if proven, entitle the complainant to the relief asked upon the final hearing, and it was not proper to dismiss its bill without an opportunity to sustain it in the usual way of making proof in suck cases. It cannot be said that no other relief was sought in the bill, except to restrain respondents from landing their boat at the Titusville dock.

Under the allegations here, and the circumstances of this case, the bill should not have been dismissed. 2 High on Injunctions, sec. 1477; Gray vs. Baldwin, 8 Blackf., 164. The decree of the Chancellor, in so far as it dissolved the injunction, is affirmed ; and in so far as it dismissed the bill, is reversed, the costs of the appeal to be di vided between the parties.