428

FEDERAI.. REPORTER,

vol. 52.

deem i,tnec,es!lary to pass upon this point, as we hold that the will of l\'Ir. Tomi!lcr(l&ted no enforceable trust in favor of the complainant, whose bill is therefore dismissed, with costs to be taxed. A decree will be entered accorqingly.

NOR'1'HERN PAC.

R.

CO. 'lJ. CITY OF SPOKANE

et ale

(OircuU Oourt, D. Washinl.Qton, E. D. September 15, 18119.)

NO. 115.

1.

,

'll!lIUNO'l'ION-'PRIlLIMINABY ORDIlR-'QUIliSTION8 Oil' TITLE.

A court of equity cannot. upon the hearing of an application fora preliminary injunction in advaI\ce of, tqe of,e.vip,ence, elecidequestions of title adversely to a party. in otreal property shoulel be protected from injury by his' opponent during the'hearing of the controversy. .
RIGBT8;-CITl'. O;aDIN+FwlI·

2.

.,

A city claimed the right to deiltroy a wooden building it was maintained in defianceota olty·ordinance and'in derogation of the terms 'of the permit granted by the city. for its erection. t\1atthe city government had no power to en· force the terms (it the permit by ijestroying the building without process of law. and a restraiJiirig oreier snoulel not be vacateel.

8·. S"'MIl.. . : .. ·. An oreler restraining a cit}" from preveI).ting the erection of a n.ew elepot by a 'railrolldon the' slta'of an olel one pendente lite gives the railroael too great an lid· ,'. vantage while the title is in dispute,anel should Ilot be granted.

In Equity.)3ill by Northern.;PacificRailroad Company to restrain the city of Spokane and others from destroying an existing depot, and from, preventing the building of a I).eWOne. A preliminary restraining order was granted. Heard on motion ,to vacate the order. Granted in part. J. M. A8ktQnanliAlbert Allen, for plaintiff. (Jea. Turner and P. P. Quinn, fo!' defendants.
HANFORD, District Judge. The complainant, for the transaction of i.ts freight busi,ness at the city of Spo,k:au¢, has in use a cheaply consf,l:upted wooden. warehouse, situated witbin the limits· of its right of way. Tbjs istructurewa$, designed fOr use, and ,was hastily built i:w.:mediatelyafte,r confl&gration, which occ.urred on the 4th of Auupon the site .of the freight deppttheretofore in use, f/.p.p. ;which wascQJ;lsw:n.ed in said. cQnflagration. There isa controversy l:wtlveen theraiJrqad company and the city of Spokaoeas to the title to part ,of: the gJ'Qun.<:l.covered by warehouse, the railroad company that ita title is perfect, an4 the citY' that, by act of U16<!il'ailroad company, part of thegropndcovered hy..it was dedicated t01thE! public for a··streetj that it isa.n;obstructionof apoblic ;street, and therefore a nuisance,and on that ground the officers of the city. propolle to tear. it down, and also to prevent the railroad company from erecting a llew fmight c1epotclwering allY part of the ground within the

NORTHERN PAC. R.

cb.

V. CITY OF SPOKANE.

429

limits of the alleged street. The object of this suit is to obtain: a decree which will determine the adverse cla.ims of the parties respecting the title to this piece of ground, and the complainant has made application to the court for an injunction to prevent the defendants from tearing down said temporary structure, and from interfering with the erection of its proposed freight depot during the pl:>ndency of the suit. Said application was, by an order of the judge of this district, set for hearing on the 4th day of October, 1892, and at the same time a temporary restraining order was granted, forbidding the threatened destruction of said temporary warehouse and all interference by the defendants with the complainant in its possession of said ground, or work in erecting its proposed freight depot. The city of Spokane has moved to vacate said restraining order, on the ground that the same unjustly interferes with the lawful exercise of its powers as a municipal corporation, to the injury of the inhabitants of said city . Whether the said officials have or have not lawful authority to enter upon ground 'in possession of the railroad company, and interfere with the transaction of its business, by the summary destruction of the only freight warehouse which it has in the city of Spokane, on the ground that the same is an obstruction of a public street, is a question which involves the determination of the issue between the parties as to the title to said ground. On the part of the defendants it is insisted that the judge has power to determine this issue upon the present hearing, and that it is his duty to do so; a similar contention has been made before me several times, and I have, after patiently hearing and considering all arguments advanced, several times reiterated the opinion that a judge cannot, upon the hearing of an application for a temporary injunction in advance of the taking of evidence, decide questions of title adversely to a party in possession of real estate; and that such a party, when claiming to have a lawful right to the possession and use thereof, and coming into a court of equity for the purpose of submitting for its determination a disputed question as to his title and rights respecting such property, is entitled to have the same protected from injury at the hands of the adverse party during the time necessary for the hearing and determination of the controversy by the court. I have heard and given dueiconsideration to the able arguments made by counsel for delendants in opposition to this rule, but my mind has become strengthened in the belief that the rUle is sound, and no sufficient reason appears for not applying it in this case. n is claimed that the city has a right to demolish said warehouse, the same is conunder the provisions of its fire limit ordinance, structed of combustible material, and its existence is a menace to the city. I would not be willing to restrain the officers of the city from enforcing its valid ordinances, and I may conclude, upon the final hearing of this case, that the ordinance referred to does authorize the city to destroy said building as proposed. Bu!· it is claimed on the part of the complainant that this building was erected before the ordinance referred to took effect, and therefore it is no violation of the ordinance to main-

430

vol. 52.

t8iuit; 'The JaQts ns totbe ,tinlG'when building .Wl!-S constructed, and .which. the ito.ok effect, do ll9trclear1y appear, and .I ,am· ,in dowbtftstowhllther ¢l',nqtthis building.riS'oue for the re:moval ofwhich ,the ordinance and it is IPyopLl1ion that :the restraiDingorder shouldcontiJ;l;uEl,il1 so fRr as to forbid the jnvasion .of the and the destruction of property,and .intem;lpttonofitsbu!!iness, until the final hearing and determination of all the;questipDsinvolved. The city council of Spo.kane of this building, requiring its.,officers to prevent theel'ection of wooden buildings. within limits incLuding the ground referred to, witbol;lta permit from the council; and ·to construct this building a permit was obtained by the pllJ,intiff from .the council, upon an express promise, made by agents of the complainant, thlit the same should not be maintained longer th/ln .nine rponths, and that it should be removed at anytime upon ten days' notice that the said citygovernmentrequil'ed it. This resolution and agreement, however, are matters in the, past; the resolution givesnocQlorQf authority to destroy buildings for the construotion of which a permit was obtained .:from thecouncil,snd it ,is not a part of the functions of the city gov.erilment to enforce the terms;of an agreement by measures without process of law,asproposed in this instance. The purpose .of a restraining order pendente lite, i.ll all cases of this ,J.lature, is. to preserve. property which is the subjeet ,ofcontroversy,in its existing OOllditiou, until a final hearing and determination of the cause; .and the. order should be limited so nsto simply preserve the status quo, and shoulduotgLveeither party an advantage by proceeding in the acthe right to whioh ·is ,disputed, while ,tbe hands of the ·other panyare tied. I think, thereJore, that the ra.. goes too far, in tbia; that it forbids ,interference bN',tbe city government with the erection'Qf)a building upon aisite whichisthe subject of litigation, and in violation of an ordinance ;01' the tha.t,before commencing to etect. the same, the 'plans ands{lecifications for such building be submitted to inspection, a permit be obtttined after the inspection. Therefore·the order heretofore granted will be modified by eliminatingso muchofi·t as forbids the hindering or obstruction of the railroad :compa.nyintheerection ofitsproposed new freight: depot, and in all other ,respects it will ,be contiuueduntil further order of the court;

"

I',

CLEVELAND STONE CO. fl. WALI.ACE.

431

CLEVJ<jUND STONE CO.

v. W ALtACE. et al.

May 2, 1892.)

(Circudt COUrt, E. D. Michigan.

No. 3,289.

1,

TRADIl-MuKS-INFRINGEMENT-ExCLUSIVE USE-SCYTIlESTONES,

For 15 years prior to 1885 two companies used in cammon and made and sold certain patterns of scythestones, In 1876 they fotmed a pool, and for nine years sold their manufactures under the same labels; In 1885 they united with others to form a pool, ali the members of which sold like patterns under like labels. In 1886 plaintiff company bought out one of the original companies, and it and the other original company only continued to make and sell such labels till 1800, when plaintiff bOllght out the other aritrlnal company. Held. that there had been no such in· discriIIiinate use of the patterns as would deprive plaintiff of its exclusive right. It. is an equitable defense to an action to restrain infringement of trade·mark thatdefeildant's wares are equal in quality to those of plaintiff.

.3.

SAlIQC-EQUITABLE DEFENSE-QUALITY OF GOODS;

B.· SAMm:-MISREPRESENTATION 011' MANUFACTURER. The between scythe and whet stones made and sold by plaintiff under the naI\les of "Quinnebog," "Western Red ;Ends," "Star," "Diamond," etc., consisted mainly in patterns, "ize, and finish. Plain.tiff's circulars stated that the variou!! pat-terns were. made at "Willow Creek Quarry,"" Green Farm· Quarry, ., etc., and, "from selected Huro.n grit," and from the best blue. Huron grit j " but the context of the circulars showed that all were made at quarries in the same city. HeW, that the fact that all were made from the same quarriell or rock formation wall Il,ot evidence of a material false statement! as the plaintiff had the right to associate one trade·mark with a name arbitrarill given to a part of his quarries; or to represent that the stones were. made from. selected" or from" best blue Huron grit," so long as he furnished the same article aud the same qualit,y demanded by·the preference of his cUstomers. .
·· SAME-RELIEII' FOR FRAUD.

Wpereit clearly appeal'S that defendants have closely imitated pia,lntlff'slabals, patterns, and style, and have done obvious damage to his business from the businells methods employed, plaiutiff is entitled to relief on the ground of fraud, independently. oftpe validity of his trade-marks. .

InEquity. Bill by the Cleveland Stone .Company against John E. Wallace! Lee R. Wallace, William H. Wallace, and Margaret Wallace to restrain: infringement of trade-mark. Temporary injunction granted. Elbridge F. Bacon, for complainant. John D. Conely, for defendants. SWAN, District Judge. This is a motion for an injunction to restrain the defendants from the selling and offering for sale scythestones under certain names and labels which are claimed by plaintiff as trade-marks. The plaintiff is a corporation organized in 1886 under the laws of OhIo, and since that date has been, and still is, engaged in the manufacture of scythestones, whetstones, and grindstones.. Its quarries and factories are situate at and near Grindstone City, Mich. Upon its organization in 1886 it purchased the quarries, factories, and plant at Grindstone City, and the good will of Worthington & Sons, who had carried on bueiness there for 15 years or more. On the 23d of January, 1890, plaintiff bought the quarries, plant, business, good will,and entire property of the Lake Huron Stone Company, at Grindstone City, where the latter company had been quarrying and manufacturing grind and scythe stones since 1869. The Lake Huron Stone Company and Worthington & Sons, up to the time of said sales to complainant, had for