LAKE ERIE It W. R. CO.V. CITY OF FREMONT, OHIO.

721

pany or of the shipper to pay it.

The case, indeed, is not ripe for a final decree. Upon this preliminary hearing the decision will therefore be confined to matters distinctly in issue. The prayer for temporary injunction against the express company will be denied, and the railroad commission will be enjoined conformably to the prayers of the bill. It is not deemed necessary to enjoin the attorney general, for it is presumed that the eminent lawyer who is the official head of the bar of the state will, without such injunctioll, accord all appropriate respect to the decision of the court.

PARISIAN COMB CO. v. ESCHWEGE et al.

(Circuit Court, S. D. New York.

March 31, 1899.)

EQUITY PRACTICE-TAKING TESTIMONy-POWER OF COURT TO LalIT.

In the taking of proofs in equity In a circuit court, a witness cannot be excused from answering a question deemed immaterial by the court, as the party Is entitled to have the testimony In the record for Uile on appeal.

On Application to Require a Witness before a Master to Answer a Question. John R. Bennett, for the motion. James A. Hudson, opposed. LACOMBE, Circuit Judge. This is another application to require a witness to answer a questioil propounded during taking of proofs in equity. As has been so often pointed out, the decision of the supreme court in Blease v. GarIinf,rton, 92 U. S. 1, seems controlling. It seems as if the information sought to be elicited were not essential to complainant's case, nor, indeed, relevant or material to the issues which, according to practice, will be first argued, viz. validity of patent, construction of claim, and infringement. Nevertheless this court is not the final arbiter as to whether the testimony is or is not immaterial, and, in view of the object intended by the amend· ment of the sixty-seventh rule, it should obtain and preserve the answers for the benefit of the appellate tribunal. Blease v. Garthat the lington, supra. As to 'lrder of proof, it is not trial judge will be without pOwer to enter a final decree assessing damages, if the evidence warrants it, without going through the formality of an interlocutory decree, and reference to a master. r.rhe question must be answered.
LAKE ERIE & W. R. CO. CITY OF FREMONT, OHIO.

T.

(Circuit Court of Appeals, Sixth Circuit No. 607.
1

March '7, 1899.)

mJtrJJcTION-RESTRAINING ERECTION OF N"UJSANCE-SUFFICIENCY OF EVIDENCE.

To entitle a city to an injunction refltralnlng a railroad company from constructing an embankment for Its tracks, over Its own land, au island In a river, upon the ground that suc.h embankment will 'increl4'l 02 F.-46 '

122

. :;

92 FEDERAL. RJIlPORTER·

tbedanger of overflow In tlmell of high water; tbe proba.blllty of .nch re.ult must be clearly shown. The mere that condltlonl might be such that the danger would be increased by the embankment is not .ufficient to authorize a court of equity to interfere with a use of property which is rightful.
So

EQUITY PRACTICE-EFFECT OF FINDINGS OF MASTER.

In deallng with exceptions to Ii master's report, the conclusions of the master, dependIng upon conflicting testimony, have every reasonable presumption in their favor, and wlll not be let aside unless error or mistake clearly -appears. .

Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio.
ThIs Is an appeal from a decree of the cIrcuIt court of the Northern district .of Ohio, Western divIsIon, perpetually enjoining the Lake Erie & Western Rallroad Company from constructing a solid embankment of earth, in place of the trestle upon which Its track is now laid, across an island in the Sandusky river, within the corporate Ilmlts of the cIty of Fremont, OhIo. The eause was removed from the common pleas court of Sandusky county to the court below by the Lake Erie & Western Railroad Company, a corporation .afthe state of Illinois; and In the court below the city of Fremont filed an amended bill, to conform to the practice of the federal courts of equity. The averments In the bill set forth the threatened construction of such an embankment, and stated that Itssubstltution .for the present trestle would, In times of ordinary high water, flood the water back upon the streets, alleys, and houses of the city; interrupting public travel, and stopping the escape of the sewage, and exposing the residents of the city to disease and great discomfort. The defendant railroad company answered the blll, and specifically denied that the contemplated embankment would in any degree increase the danger from floods to the inhabitants of the city of Fremont. A replication was dUly illed, the issues were made up, and the cause was referred to a master to take eVidence, and report upon the question whether the building of the proposed embankment would cause the danger as alleged by the complainant in its blII, and whether, if there was any danger from the embankment, it might be avoided by omitting part of It. The master heard the witnesses upon both sIdes of this question at great length, and returned, with his conclusions and findings of fact, the evidence reduced to writing by a stenographer, amounting In all to 1,650 printed pages. The master's conclusion was "that the bUilding of the' embankment across said Island in the Sandusky river wIll not cause the'injuries · · · complained of in the said complaInant's bIll, or /lny part thereof. · · · If IJ;1/ld any doubt on the subject, I would recommend the construction of a bridge span 120 feet in the clear, similar to th/lt over Front street, located about the middle of the island. Such a span would carry off all ice, that would not otherwIse be deftected and carried off by the trainIng dyke formed by the empa.nkment, much better than the present trestlework, and wOl>ld meet all emergencies; but, as I ha.ve no such doubt, I make no such recommendation." The Sanduskt rIver Is a river 60 mlles in length, emptying Into the SandUSky Bay, an estuary of Lake Erie. The river draIns a watershed of 1,200 square miles. It enters the city of Fremont at about the center of the south corporation Une, and, pursuing a course somewhat east of north, leaves the eorporate lImits at the north corporation line, a short distance from the northeast corner of the city proper. It divides the city, with the more populated pOrtion on-the west. Fremont contaIns about 8,000 inhabitants. The main street rurmlng east and west is State street, which crosses the river at a point where the water. at its ordInary stage is on. the level with that of Sandusky Bay and Lake Erie, and is slack water. Sandusky Bay, following the meandering of the river, Is 18 miles from Fremont. For a distance of 400 or 500 feet upstream. from the State street bridge, at ordinary stages of the water, there is slack water, and no current. Below the State street bridge the river widens out, and at a distance of 1,000 feet divides Into two channels. The main channel is the west channel, the east channel being much narrower. The two channels make the Island acroy which it is proposed to build the

LAKE ERIE & W. R. CO. V. CITY OF FREMONT, OHIO.

723

embankment in controversy. The Lake Erie & 'Vestern road enters Fremont from the northeast. crosses the narrower of the two channels, just referred to, on the bridge, crosses the island upon a trestlework, e!'Osses the west challnel upon a wider iroll bridge. and then tt'aYerses the westem portion of the city, The locus in quo may be better understood from the following maps:

lr:'to.,_

"PI..I\T

OF

SANDUsKY R1ve:F\

FREMONT, O.

r

.)

724;

i,lij

92 FEDERAL R·EPORTER.

The second map Is more accurate, In showing the parallelism of the trestle and the eastern branch of the rlver,the dimensions of the Island, and the length and size of the small bayou on the eastern side of the Island, which enters from the north, but does not extend south to the river. as shown in the first map. li'rom a deep dam, 2% miles. upstream, .sotlth from the State street bridge, the fall to slack water under the' State strt\et bridge is about 221;'2 feet,

LAKE ERIE & W. R. CO. V. CITY OF FREMONT, OHIO.

725

or 9 feet to the mile. After entering the corporate limits, the first obstruction in the stream is the bridge of the Michigan & Lake Shore Railroad Company. A short distance below this is an old city darn, broken and not in use. and a short distance below the darn is the railway bridge of the Wheeling & Lake Erie road. There are no obstructions in the stream between that bridge and the State street bridge. The distance from the Lake Shore bridge to the Stat(' street bridge is 2,700 feet. From the Lake Shore bridge to the dam below it is about 400 feet, and from the Lake Shore bri(lge to the Wheeling & Lak" Erie bridge about 700 feet. From the Wheeling & Lake Erie bridge to slack water, a distance of about 1,400 feet, the current is quite rapid. The descent from the surface of the water, at ordinary stage, from the Lake Shore bridge to the State street bridge, is about ;-, feet, and from the 'Wheeling & Lake Erie bridge to the State street bridge about 3% feet. The Lake Shore bridge has two spans, with 97% feet for "ach span, and an opening in the clear of 195 feet.. There is, in addition to this, what is called a "toe span" of the same width, under which there is dry ground about 6 feet above the surface of the water, at stage. The 'Vheeling & Lake Erie bridge has three spans, of 121 feet each, or an opening of 363 feet. Both these railroad bridges are built upon solid embankments extending aC'ross the vaHey of the stream. The State street bridge has three spans; the end spans being 85 feet in the dear, and the middle span 140 feet, affording a total opening of 310 feet. Thl' bridge of the defendant company, in the west channel. 1,800 feet below, consists of four spans, of 132 feet each, with an opening in the clear of 528 feet. The fioor of the bridge is 2ti feet above the water at ordinary stage. In addi· tion to the four spans alread:r referred to, there is a fifth span, on the wes1 side, over the 'Yheeling & Lake Erie Railroad track, which is laid on the top of the west bank of the river. This span is 120 feet in the clear. The bridg\' across the east channel has three spans of 121 feet each, or a total opening' of 363 feet. The bridge across the east branch is placed askew the channel. and the opening for the water at right angles to the current is but 200 feet: making a total opening in the two bridges under which the water passes of 728 feet, at about right angles to the current. The Wheeling & Lake Erit' track on the west 113nk of the river is about 11 feet above the ordinary stage of the water, and about 5% feet above the average height of the isla.nd oppositp: so that. 'when the riyer is bank full in a fioou, with the water up to the rail of the 'Vheeling & Lake Brie track on its west bank, the water will be aboui 5% feet in depth on the island, on an average. There are parts of the ThiI;\l ward of the <"ity of Fremont on the east side of the river, sparsely populated. which are as low as the island. and some very little a.bove it. The island has an extreme width of about 750 feet, and a. length of feet. The east pier of the west dlllnnel bridge is [j{)() feet from-the extreme southernmost point of the island, while the west pier of the bridge over the east branch is 1,800 feet from the same south point of the island. '1'he length of the trestle from the east side of the bridge over the western channel to the west side of the bridge over the eastern channel is about 1,200 feet. It is built on a emve. Just east of the bridge over the west channel, the trestle continues in the same direction as that bridge for about the length of the bridge, and then curves to the northward in sueh a way as to make the trestle from that point nearly parallel with the east branch of the stream, and but a short distance therefrom. There a.re 85 bents in the trestle, which is of wood; each bent being 12 feet wide. A little less than a mile further down the stream. beyond the bridge across the main channel. and about 2,000 feet below the end of the islalld, after the river has na.ri·owed ('clllsiderallly, it makes an abrupt bend at right angles to the northeast. That is called the "First Boyer's Bend." After running some 2,000 feet, it turns- again towards thp north, making a second bend between high bluffs. 'l'he second bend is called the "Second BOJ'er's Bend," and is 1% miles north of Fremont. The river at Second Boyer's bend is about 3GO feet in width. 'When, however, the water is up to the level of the 'Wheeling & Lake Erie track under the bridge over the west channel of the Lake Erie & Western Railroad. the width of water opening at Boyer's Bend is 450 feet. '1'he surface of the water at ordinary stages is the same under the State street bl'ldge and GOO feet above, under the Lake Erie & 'Westernbridges, and at Second Boyer's bend. As already de·

726:

92 FE;DERAL

scribed, at Second Boyer'l! beJ;ld the highlandcome8 down nearly to the water, so ,as to make a, narrow gateway, not, exceeding 500 feet in width at any probable height of the water. The area of space afforded by tl+e bridges for the passagei,of,water when the river full at theI,.ake Erie ,&'\Vestern bridge (assuming, thus, the column of water to be 11 feet above its ordinary stage) is as follows: Lake Shore & 1fichigan Southern. .. . . . . . . . . . . . . . . . . . . . . . . . .. 3,000 feet Wheeling'& Lake Erie 4,320 feet State street bridge 3,516 feet Two bridges of the Lake Erl:e & Western 9,136 feet Boyer's Bend 5,910 feet These figures are made to include the actual depth of water to the bottom of the river at each point. The action of the water 'in the river can best be understood at the time of floods by the history which the master gives of the various series of floods as brought before him in testimony. He says: "Many witnesses have tes· tified to the number and character of so-called floods 01' freshets at Fremont from 1840 to 1897. and also as' to the condition of the river and the city at such times, and also as to the formation of ice gorges, and the effect of such gorges. The highest floods In the history of the city occurred in 1883. The water began rising on Saturday, February 2d, and was at its highest point on about noon, and gradually receded until the following Sunday. when it was within banks. It left the streets and alleys on the east side, and many streets and alleys on the west side, of the river, obstructed with Ice and debris. Front street, the principal business street, had two or three feet of water in it: and men went about in boats through the streets, as well as over vacant lots and the sUbmerged'flats south and east of the city. One woman was drowned in her house, wliich was located some distance north of the Lake Erie & Western bridge. One span of the Lake Shore & Michigan Southern Railroad briage, 20 feet above the bottom of the river, was washed out, and a number of freight cars went down with the bridge. The water ran over the banks at State street and Ohio avenue, and one freight car was lodged at this point, where the water was four feet deep, and others were carried down through the other bridges to the lowlands, and points away north of the city. 111'. Judson has indicated on the tracing map the surface of the territory that would be affected by a flood, the level of which was 13 feet above datum. A good idea can be obtained of the. condition of things in 1883 by adding about 5 feet of water on top of that water datum line. The conditions existing at the time of this UIlprecedented flood. were such that there is no probability of its ever occurring again, although there 'is a possibility. During the winter immediately preceding this flood there was extremely cold weather, so that the ice had frozen to a thickness of 22 to 24 Inches where the water was slack; and the ground, too, was frozen to a great depth, so that it was practically impervious to water. Some time during Saturday, on the 2d, the rain fell, but was of such character that it froze upon the surface of the ground as it fell, until it formed a coating of ice half a,n inch to one inch thick all over the state of Ohio. that there was avery heavy rain and warm weather, which precipitated all of the rainfall into. the strE'ams, without any portion being absorbed In the earth. The result was t.hat in all streams In the state of Ohio there was sudden and unexpected 'flooding, and great damage was done. That flood produced the most serious damage to the city of Toledo, In its history, when the water In the Maumee river rose to the height of 20 feet In a few hours. This is a peculiar combination of circumstances, all of which contributed to the causing of the highest water which had ever been Imown before by any of the witnesses who testified, and the chances of Its repetition are very remote. So-called floods, or extremely high waters, have occurred in Fremont at the following times: February 24, 18B2; February 24, 1865; February 24, 18B6 (and this floOd was the next highest and most disastrous to that of 1883, and water came down Front 'street, and interfered with the business of the city); on Feb· ruaryl6, 1867, great flood; March 7, 1868, high water, which the witness Mr. Hedrick would say was a flood; and on February 12, 1881, there was high water. Some of the older inhabitants also mention a considerable flood in 1846,and another in 1849; and numerOU8 witnesses testified to the fact that in

LAKE ERIE & W.R. CO. V. CITY OF FREMONT, OHIO.

727

1884 the river rose so that It overflowed the banks on the wpst side In the vicinity of :May street and Knapp strpet. The oldpr witnesses say that tllPre is no material differenee in the frequeney or in the height of freshets and high water along prior to 1880. When the Lake Erie & ·Western Hailroad bridge was built,and since that time. Almost every year when the Ice breaks in the spring there are gorges formed at various points in the river. The testimony shows that the river is subject to gorges that affect the flow of the water at nearly all points from a distance above the city, above Ballville. above the Lake Shore Railroad bridge, south of the Lake Shore bridge, south of State street bridge, north of the Lake Erie & bridge, but more generally north of State street bridge, in the shallow water at the head of the island. There have heen many heavy gorp;es north of the Lake Erie & 'Vestern bridge. beginning upon the right side 01' east side of the river, on a sand bar that extends out at that point, and running diagonally down till' river to the west shore; and there have been some very disastrous gorges, which formed at the first bend, where the river ahruptly turns to the west, blocking the channel so completely that the water was forced baek until it filled the basin from the foothills on the one side to the foothills on the other. The 'Yheeling & Lake I.Jrie Hailroad traek, from the point where it erosses State street and runs into Front street down to the point where it diverges from Front street. running northwest, practically eonstitutes the bani, of the west side of the river. The water has probably risen higher than the 'Vheeling & Lake Erie traeks at these points four or five times sinee the year 188.3. Sometimes the .Tune freshets have risen higher than the banks. and have covered the island, but usually the waters that are highest are accompanied with iee and the gorging of ice. The tiood of 18G6 caused a gorge above the State street bridge on the territory that is now south of the 'Vheeling & Lake grie traeks. That was before the Lake Erie & Western bridges and trestle were built; and, as the water was praetically as high north of the Lake grie & 'Vestern bridge as south of it, 1 find that the Lake Erie & 'Vestern bridges and trestles were in no sense the eause of the disasters that aceompanied the floods of 1866 or of 1883. On the eontrary, I find that, while the very large volume of water that was pre<'ipitated in 1883 would have risen higher than ever in its history before. it was made worse by a gorge of heavy ice that formed at the fil'st bend north of the Lake Erie & 'Yestern bridge, spoken of above, and which held the ,vater back for several days to some extent." From the areas of water opening stated above, the master found that the west channel bridge of the Lake Erie & 'Vestern road alone would afford passnge for all the water, when unaccompanied by ice, which would possibly come ,Iown within the channel of the river under the bridges above, and which would [laSS out, at second Boyer's bend, of the basin, whieh Is made between the hills. 'rhe water rises upon the island, not by reason of the wave of downward flow in the river from the south to the north, but it rises gradually on all sides of the island, and espeelally from low points on the east and west sides north from the bridge by reason of the filling up of the bottoms and the river below, between the island and second Boyer's bend. '.I'he master found that in sueh floods there was practically. no current over the island, that a strong current was in the two channels to the east and west of the Island, ami that the slight eurrent upon the island was sometimes in one direction. and sometimes in another, by reason of an eddy forming at the north end of the island by the confluenee of the two channels of the river at that P<lint. The February freShets are usually aecompanied by ice. By reason of the slack water under the State street bridge and below, t.he lee freezes quite thiek, and in some of the shoal places freezes to the bottom. As the loose and broken ice is brought down through the narrow and more rapid part of the stream, and strikes the slaCk-water ice, there is a tendency to form gorges; and the eontention of the complainant was and is that these gorges form, and are in the habit of forming, to a great height, at the piers of the bridge over the west ehannel, and at the piers of the bridge over the east channel of the defendant eompany; that these gorges make tight dams reaching up above the banks on the west and east side of the river, so that the only escape for the water is through the trestlework upon the island, which a solid embankment would entirely prevent. and thus greatly increase the flood of the water back uP<ln the lower part of

728

·92 FEDERAL ItlCPORTEB.

the city. The master found that Ice gorges form at the shoal placlls In the river, that the water under the bridges of the defendant company was deeper than It was above or below, and that the formation ofa gorged dam at either bridge was very Improbable, Tltemaster said: "The testimony Is clear that the gorges usually begin to form north of the State street bridge, at the shallow ground above the head of the island; that they then break up and move {lut as the water rises, pile up higher as the ice accumulates; but that they finally lllove' d6wn the river, sometimes passing out at one channel, sometimes the other. Sometimes the gorge begins when the thick ice below State street breaks in wide cakes, and floats down to the west bank, and swlngs around against the piers of the west bridge, and thus holds back the ice that fol· lows. Usually such gorges as these pass out before the water rises as high as the Island; but the proof Is that the gorges that hurt form on the sand bar that puts out from the Island on the north side of the bridge, and resting against the ,thick Ice from the dam, with its points of resistance running down· stream, laterally to the opposite bank., And at such times that portion north of the bridge fills with field Ice, and backs up to the bridge, where the piers fortify the points of resistance; and then the Ice Is gorged and forced up against the piers upon the banks and on the head of the Island, and the accu· mulatlng Ice floats around to the east channel, and fills it with field or floating ice; and the gorges that do most harm form at or below the docks, and near the point where the river turns at almost right angles to the west. The proof shows that such a gorge formed there in 1866, and In 1883, and that It was so dense and firm that themain',body of water passed over Rawson's flats, north of the Port Clinton or Dock road, to Boyer's second bend, the only and direct point of exit." Again the master says: "Now, the fact Is that sometimes, when the water rises high enough, the Ice accumulates In the space south of the trestle and bridges, and, floating on top of the water, rests against the piers and trestle, and that sometimes it fills this spaee,· but does not extend over the Island beyond the north end of it. · · ·· It Is. absurd to suppose that Ice 'would pass through the narrow spaces between the bents of the trestle and such openings, further limited by their diagonal position with respect to the course of; the supposed current, and where' the surface of the Island must always be about ten feet higher than the bottom of the river, and that the Ice would not pass through the space affol'ded by four to six spans, when the smooth stone piers are from .182 to 120 feet apart, and where the water woilld be ten feet deeper than It Is on the island. My conclusion Is that the bulldlng of the embankment would not Increase theliabillty of the forma· tlon of the gorges, but would rathel' diminish such liability. When we consider theconstructlon of the trestle, and see that the bents are composed of five poles or piles,and that these. bents are twelve feet wide, and distant from each other .only fourteen feet, that the line Is alillost parallel with the east channel, and that, In the perspective shown,by looking along the Hne of the trestle, the sDuthend of each bent seems to overlap the' north end of the bent Immediately beyond It, It will be seen that It Is especially well formed to retain any Ice that maytloat against It,-much more so than a smooth and solid bank of earth, even If It berlp..rapped with stone,-and that such a solid bank would facilltate the release.of any floating Ice that may reach It, 'and deflect It Into the deeper channel, where it will be carried away. To refute this argument, reference Is made to the evidence of witnesses who say that In the flood of 1883 a continuous gorge formed along the line of the bridges and Island trestle, and remained thE're.()ver Sunday.and the greater part of Monday and Tuesday. No doubt, there was some Ice resting against the line at some places, but they are mistaken In supposing that there was a continuous gorge. In 1883, at the time when It Is said the lee- gorges were largest, at 10 or 11 o'clock on Sunday, the 2d of February, parties passed through under the west span of the Lake Erie & Western bridge, In clear water,clear of Ice gorges; and they say the western spans were clear, except floating ice. When It was. highest, anum· bel' of freight cars from the Lake Shore bridge passed under all of the other bridges, and wen1l away down' the river, where they lodged. A stereoscopic view (being Exhibit No. 23), which, was taken on Monday, when the water had fallen about two feet, shows the· entire line of bridge and treBtlework clear of Ice, eXcept some floating cakes. The confined basin .south of the Lake

LAKE ERIE <It W. R. CO. V. CITY OF FREMONT, OHIO.

729

Erie & Western bridge, no doubt, gets filled up with ice that floats down against the trestle and against the piers, and, being pressed by more ice from above, soon fills this space, and thus presses it up on the sides of the banks, and on the island above the water level; but there is never a time when the greater volume of water does not pass under, over, or through this ice. ... ... ... The second point relied upon is stated in certain hypothetical questions put to adverse witnesses by complainant's counsel: First. If both the west channel and the east channel are filled with ice, so that no water passes through, would not the island then afford the only outlet for the water and ice'! It is erroneous to assume that there is ever a time when there is no water passing through the channels. It either goes under or over the ice below, and, when the water rises to a height that would overflow the banks, the channels are not filled, and the trestlework open," The learned judge on the circuit sustained the exception to the master's report, as to his conclusion of fact. 'I'he court said in the course of the opinion: "In my judgment, a railroad company should not be permitted to build a dam across a stream of water running through a city, unless it is certain beforehand that the structure will not flood the streets and property of the inhabitants of the city. * ... ... It was conceded by the learned and ahvays frankly-dealing counsel for the defendant in the very beginning of this case, that if the time should ever come when the spaces between the spans of the bridges across the two ordinary channels would become engorged with ice. and there should be a solid embankment across the island, then it would result in a complete dam across the Sandusl,y river within the town of I1'remont, and might occasion an overflow of its streets, alleys, and property: but his contention was and is that the space ways in the bridges on either side of the island are all-sufficient to carry off the water of the Sandusky river at any time, and that there is no reasonable probability that such an engorgement of these space ways by ice will occur to bring about the disastrous results indicated. I think this proof falls far short of sustaining this contention. There seems to have been a disastrous engorgement in the flood of 1883; and, while it must be admitted that a rarely occurring and exceptional flood should not determine the rights of the parties, depending mostly upon average and ordinary conditions, we cannot overlook the circumstance of that extraordinary flood in determining the question we have here, nor what may be a danger of throwing an embankment across the island, when there is only a matter of choosing one form of structure rather than another, and of additional expense in snbstitnting first-class trestles for embankments. The fact that the railroad company has a!>vays maintained an open-space trestle across this island Is another circumstance that seems to the court to corroborate the contention of the plaintiffs that the closing up of these spaces would endanger the flooding of the town. It is proposed now to make a change in this respect; and it seems to the court that the citizens of the city may well be apprehensive that the change will be detrimental to them, object to it, and insist that the railroad company shall not make the change unless it be certainly shown that there is no danger of unduly obstructing the flood waters. I do not agree with the master that this proof shows such a certainty; nor do I agree with counsel for the defendant that the railroad company has a right to make the change unless the city can show conclusively that the embankment will produce a flood. The danger of a flood is obvious. It is the natural result of damming up the water ways of a stream. It is proposed here to make an embankment, whieh may become a complete dam by the freezing up and engorgement of the ordinary channels on either side of the island, already partially obstructed by the bridge structures of the defendant company. The physical surroundings and climatic conditions are of a character that indicate danger from ice gorges at the bridge structures and above them. The sluggish, almost dead-water, conditions of the ordinary currents in the Sandusky river thereabouts further indicate that in times of peril by flood every inch of space for carrying off the water is needed. Ordinary prudence demands that as much space shall be left as possible. It is upon the right of the city to insist upon the compliance with the ordinary rules of prudence, and upon its reasonable apprehension of danger from obstruction of the natural flood ways, either around the island or over it that the maintenance of this injunction depends, rather than any estab-

730'

92 FEDERAL. REPORTER.

lished certainty that a flood would occur If this embankment were constructed. Too heavy a burden Is sought to be .put upon the plaintiff, when it is contended that it must be demonstrated by the proof that the flood will take place. n is only necessary to show that there is reasonable danger of its taking plaee, to entitle the city to this injunction. It is not the fault of the master that the proof in this case, and his consideration of it, have seemingly drifted upon the supposed necessity of demonstrating the oecnrrence of a flood if the embankment be allowed. But what has taken place before the master. its very voluminousness. convinces me that the danger of flooding the town of 1"remont, by the proposed embankment, does exist. I do not say that the proof shows that floods will occur, but it certainly does not show that they may not occur; and the danger remains the same, whether the conditions shall ever arise that bring about a flood or not. The possible occurrence of such eonditions is sufficient. in judgment, to maintain the injunction. Having reaehed this conclusion, I do nat deem it necessary to. spedtieally rule upon eaeh of the forty-two exceptions to the master's report. The whole controversy tUl'ns upon the ultimate conelusion of the master that the embankment will not eause the injuries apprehended by the plaintiff; But, by whatever process of reasoning upon the proof he has drawn this conclusion, it seems to the court a matter of his opinion agreeing with the opinion of the witnesses who think as he thinks about the effect. under the laws of hydraulics, of the eonditions found in the proof. The master may be right about this, but he also may be wrong; and the danger that he may be wrong is shown abundantly by the testimony of other witnesses, who disagree with those whom the master believed. And so I say again that the very existence of the conflict of opinion demonstrates the danger, and that is sufficient to maintain this injunction."

W. H. H. Miller and James Hunt, for appellant. B. S. Garver and George Kinney, for appellee. Before TAFT and LURTON, Circuit Judges, and CL\RK, District Judge. TAFT, Circuit Judge (after stating the facts a.s above). Were the city to be flooded by reason of the erection of the embankment by the defendant railway company upon the island, the municipal corporation and the private persons injured would have an action against the defendants, which at common law would have been trespass on the case for a private nuisance. In English comts of equity it was, for a long time, laid down as a rule in such cases that until the right of the complainant was definitely established by an action at law the extraordinary remedy of injunction would not be granted by the chancellor. Carlisle v. Cooper, 21 N. J. Eq. 576. The strictness of this doctrine has, in modern years, considerably abated, especially in this country; and where the right to object is dear, and the injury threatened is obvious and clearly proven, injunction has been deemed a propel' remedy, even without a judgment at law, to prevent an injury which in its nature would be irreparable, and not to be adequately compensated in damages. It is clear, and, indeed, is admitted, in this case, that if the erection of the embankment as proposed will substantially add to the flooding of the waters over the streets, alleys, and houses of the city in times of freshets or flood, the injuries threatened are, within the meaning of the law, irreparable, and not to be adequately compensated in damages. But it is well settled that an injunction does not issue in such cases unless the probability of danger is clearly shown, and the existence of the nuisance clearly made out upon determinate and satisfactory evidence, and that in no case will the chaneellor interfere by in-

LAKE ERIE & W. R. CO. V. CITY OF FREMONT, OHIO.

731

junction where the nuisance sought to be abated or restrained is eventual or contingent, or where the evidence is conflicting, and the injury to the public, or to the individual complaining, doubtful. Hahn v. Thornberry,7 Bush, 403; Story, Eq. Jur. § 924; Dumesnil v. Dupont, 18 B. lIon. 800; Ronayne v. Loranger, 66 Mich. 373, 33 N. W. 840; Blatchford v. Dock Co., 22 Ill. App. 376; Hutchinson v. 'I.'hompson, 9 Ohio, 52; Avery v. Fox, 2 Fed. Cas. p. 245 (No. 674); Thornton v. Grant, 10 R. I. 477; Railroad v. Ward, 2 Black, 485; Spangler v. City of Cleveland, 43 Ohio St. 526, 3 N. E. 365. No different rule is laid down in City of Dayton v. Robert, 8 Ohio Cir. Ct. R. 64!l, upon which complainant relies, beeause the ease there was heard upon a demurrer to the petition, and did not involve the question of burden of proof. In this case the defendant company is conceded to be the owner of that part of the island upon which its trestlework stands. In ordinary stages of water the trestlework stands upon dry land. The island has upon one side of it a channel varying from 300 to 500 feet in width, and on the other side a channel varying from 200 to 250 feet in width. Before the city can obtain an injunction preventing the railroad company from using its own land as it chooses, we are of opinion that the burden is upon the eity to show dearly that the erection of the proposed embankment will probably increase materially the damage which floods in the stream always do to the streets and allevs and some of the houses thereof. An examination of the opinion <i'f the court below in sustaining the exeeptions to the master's report seems to show that the eourt regar'(1.ed the burden of proof as upon the defendant to show that the erection of the embankment would not injure the eity. In this, it seems to us, the eourt erred. A refusal of a perpetual injunction in this instanee does not estop the dty, or any of its inhabitants, from bringing' an aetioll at law to reeover damages and to abate the nuisanee, if the erection of the embankment hereafter prove to be injurious. At least. such effect may be avoided by inserting the words in the decree, as the defendant suggests, that the refusal to grant the injunetion shall be without prejudice to any action at law which may thereafter be brought in respect of damages arising from the embankment, and to abate the alleged nuisance. The master was several weeks in taking the evidence upon the one point in issue. The evidence was all oral. The witnesses carne before the master. He, after frequent examina· tions of the locus in quo, had a much better opportunity than the court below or this court to judge of the weight to be accorded to the evidence of each witness. It is a settled rule in the federal courts that, in dealing with exceptions to a master's report, the conelusions of the master, depending upon conflicting testimony, have every reasonable presumption in their favor, and are not to be set aside or modified unless tIrere clearly appears to have been error or mistake on Iris part. Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 8H4; Crawford v. Neal, 144 U. S. 585, 12 Sup. Ot. 759; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821; Davis v. Sehwartz, 155 U. S. Gin, 15 Sup. Ct. 237; Third Nat. Bank v. National Rank, :W C. C. A. 436, 86 Fed. 852; 'I.'he Cayuga, 16 lJ. S. App. 577, 8 C. C. A. 188, and 59 Fed. 483.

732

92 FEDERAL REPORTER.

'l'heflr'st issue of fact before the master was whether the erection of the embankment would increase the height of water, during any flood without ice, which was likely to come down the river, so as to throw it back further upon the streets and alleys of the city. He found that the waterway under the two bridges was more than three times what it was under the Lake Shore bridge, more than double what it was under the 'Wheeling & Lake Erie bridge, and considerably more than double what it was under the State street bridge, and that, although the flow of the water under the Lake Shore and Wheeling & Lake Erie bridges would be more rapid than that under the defendant railway company's bridges, the increased head of water below State street would increase the speed of the flow under defendant's bridges, and there would not be the slightest danger that the watel,' would beretarded or its height raised thereby. We have examined all the evidence on this point, and, even if there were no master's flnding in the ease, we should certainly reach the same eODelusion. A most cursory examination of the map, with a knowledge of the conditions which exist as' to the rapidity of the current and depth of water, makes this an inevitable conclusion. The only serious question which arises on the evidence is whether there is any reasonable probability that, in times when the floods are accompanied by ice, the ice will so gorge under the two bridges of the defendant company as to form a dam, from behind whieh the water can only escape by flowing over the island. The most disastrous flood in the history of the river, except that of 1888, was in 1866, before the bridges of the defendant company were erected. In that case a gorge of ice was made at a point several hundred feet south of the Lake Shore bridge, and the water, overflowing the banks of the river, was thrown into Front street, and flowed thence down into the lower business part of the city, lying along the bank of the river on the west side. Another gorge was formed at the first Boyer's bend, about a half mile below the northernmost point of the island; and the bottoms to the west of the river and to the north of the inhabited part of the city were all covered with water. In the flood of 1883, which was the highest flood in the history of the city, the first gorge was formed a few hundred feet north of the State stret bridge. As the ice coming down the river struck the anchor ice, which was frozen to the bottom of the stream, in the shallow and slack water at that point, the gorge was of sufficient height and strength to hold back the water for a short time, so that the level of the water belo·w the gorge was higher than· that above it. But as the water came down in greater force the gorge broke away, and was carried under the defendant's bridge down to the First Boyer's bend, where another gorge was formed, of great height and strength. The water rose 5 feet higher than it ever had risen before, to a point 18 feet above the datum,an arbitrary point fixed by the city authorities, being about 1 foot beldw the surface of the water at ordinary stage under the bridge of the defendant. There is much evidence adduced by the complainant to show that there was a heavy gorge nnder both of the defendant's bridges, and that this gorge extended across both bridges and across the trestlework, and banked up the water so that it

LAKE ERIE & W. R. CO. V. CITY OF

OHIO.

733

was a number of feet higher on the south side than on the north side. The master finds that the witnesses to this condition of affairs did not have the opportunities for observation. We have examined the evidence with care upon this point, and we agree with the master that there were no such gorges as are described by the witnesses for the complainant at the two bridges, and at the trestlework, in the flood of 188iJ. The circumstances which the master cites to show the fact to be otherwise seem to us conclusive upon this point. The evidence of persons who went under the bridge in boats; the fact that freight cars during the high water were carried down the river, and passed between the piers of the west bridge,across the main channel; the fact that the photograph taken the next day after the bighest point of the flood discloses no such gorge,-are not to be overcome by the indefinite statements of witnesses, many of them not yet more than 40 years old, as to an event 14 years before, especially when those witnesses are expressly contradicted by older and mOl'e experienced observers. It is perfectly clear, and it seems to us that the master demonstrates it, that the flood of 1883 was caused by the fact that the water had such huge volume that it could not escape from the second Boyer's bend into the lake levels beyond in time to prevent the flooding of the bottoms and of part of the city. The master filYJs that the two bridges of the defendant company had no effect whatever in increasing the height of that flood, and we agree with him. It is altogether probable that a trestlework constructed as lightly as this trestlework was, if it had had an ice gorge against it as the complainant's witnesses testify, with a head of water behind it from three to eight feet above the water on the other side, would have been carried away. We think the 'weight of the evidence clearly supports the finding of the master that such current as there is upon the island is verv much less than the current in the main channels during the floods, and that the island is overflowed first at the low places on both sides of the bridge, and is not overflowed by the wave of the flood as it first comes down. The circumstantial evidence upon this point, the absence of any scouring upon the island, the testimony of the witnesses who own and have cultivated the i!"land, it seems to us, entirely justify the finding of the master. Indeed, there is but a single witness who testifies to the contrary among the complainant's witnesses. The other evidence upon which the complainant relies to show the presence of the current upon the island is the existence of a current a long distance away from the island, in the flats on the west side of the river,-a current the existence of which is entirely consistent with comparative quiet of the water upon the island. The truth is that, judging by the flood of 1883, the island does not form the safetv valve from floods. as contended on behalf of complainant. The main body of the water passed under the bridges of the defendant, and not over the island, at all times dur ing the flood of 1883; and while there was, doubtless, ice gathered at the piers and on the banks of the stream, this did not interrupt the flow of the water at either bridge. It is true that the master finds, and there is evidence to show, that there is a tendency of the ice to gorge at a point 600 or 800 feet below the gorge on the shoal

734

92 FEDERAL REPORTER.

sffild bar, which runs out from the island, and that this extends across th.e river, and has a tendency to throw the water out of the channel of 'the river onto the: bottoms to; the· north and west of the stream, and that this gorge has been known to extend up nearly or quite to the bridge. It was not the case in 1883; nor does the evidence satisfy us that at any time in the history of the river there was a gorge under both bricl.ges (}f such a size and strength that the water would be prevented from passing on, and would need the island as a mode of· escape. All experts agree that the tendency of ice to gorge is at the shoal places, and the water is deeper immediately beneath the two bridges of defendant than at any point a considerable distance above or below. The evidence of the complainant's expert is that, after making measurements and calculations as to the head of water by a formula, the accuracy of which, in conditions here existing, is by no means established, he finds that if the river were bank full, and both channels were contracted by ice gorges closing up onethird of the waterway, the height of the water would be increased 84/ 100 of a foot, or 9 inches, and that, if one-half of the remainder of the channels were closed with ice, the water would be raised 1 15 / 1 00 of a foot. He proceeds upon the theory that the current on the island is the same as in the channels, when the water is above the island. This is unsound. The master found that there was no probability that the channels of the river would be blocked up to the extent of one-third or one-half of the water way. As the water increases, the probability that the gorge will withstand the pressure of the water decreases. The reason why the gorge at l!'irst Boyer's bend in 1866 and 1883 remained so long was because the water found an easy outlet through the very low bottoms to the second Boyer's bend below. The evidence does not satisfy us that any gorge under the defendant's bl'idges across the main or east branches of the river has ever reached such a height and such strength as to require the island as a means for the water to escape. The government engineer, who testified on behalf of the defendant, expressed the opinion that the filling of the trestle and making it a solid embankment, would have the effect of a training dike to carry the water and ice down through the east channel, and would facilitate the passing of the ice, rather than retard it. It seems to us that this is a reasonable view. T'he danger of flooding a small part of the city of Fremont is, of course, one that should be avoided if possible; but the remote additional injury or damage likely to result from an increase, in a flood of the depth varying from 12 to 18 feet, of an additional foot or 18 inches, is not such a danger as to require the court to depart from well-settled rules of law in determining the rights between a municipal corporation and a railway corporation. It is to be borne in mind that the erection of the embankment upon the island is on the land of the defendant railway company, and that it does not become a wrong until it is shown that it will inflict injury. The maxim, "Sic utere tuo ut alienum non Imdas," has no application until the actual or threatened injury is proven. This is not a case of res ipsa loquitur. The learned judge at the circuit treated the embankment as a dam. If it were a dam clear across the river, then the flooding

EAST ST. LOUIS CONNECTING RY. CO. V. JARVIS.

73&

back of the water to the height of the dam from the sides of the stream would be an inevitable physical result. But the error is in the assumption that the embankment is a dam. There are two chan· nels, on each side of the embankment, \vith greatly more water way than is given by the bridges above, or by the banks of the river at Boyer's bend below; and the only possible way in which the embankment can become a dam is by its continuation through the formation of ice gorges across both channels of the river at the same time to the height from the bottom of the river of at least 12 feet. 'fhe evidence does not satisfy us that this is probable, or, indeed, that it has ever happened. The possibility that it may happen is a contingency which does not justify the extraordinary remedy of an injunction. It would seem to us to be, if it did happen, so remote a natural cause as to come within the class of contingencies known as "acts of God." The learned judge at the circuit regarded the fact that the railroad company has always maintained an open-space trestle across the island, as conduct signifying its fear that a solid embankment would be productive of injury. A much more satisfactory reason for the present open trestle, it seems to us, is found in the circumstance that the cost of a wooden trestle was at the time of its erection very considerably less than the cost of filling with the necessary masonry and rip-rap work. The basis for the conclusion of the learned judge at the circuit is found in these words from his opinion:
"I do not say that the proof shows that floods will occur, but it certainly does not show that they may not occur; and the danger remains the same, whether the conditions shall ever arise that bring about a flood or not. The possible occurrence of such conditions is sufficient, in my judgment, to maintain the injunction."

We cannot concur in this view of the law. We think the danger must be shown to be probable, and not merely possible, where the remedy by injunction is sought to be enforced. The decree of the court below granting the injunction is reversed, at the costs of the appellant, with instructions to enter a decree dismissing the bill for an injunction, without prejudice to the right of the complainant, should circumstances arise in the futlll'e justifying it, to bring an action at law, either for damages, or to abate a nuisance arising from the erection of such embankment.
EAST ST. LOUIS COXXECTING RY. CO. et at. v. JARVIS. (Circuit Court of Appeals, Seventh Circuit. No. 377.
1.

RAILROAD LEASES-LIABILITY FOR RE1'\T.

March 28, 1899.)

A lease to a railroad corporation provided for a fixed annual rental, and a sum equal to a certain per cent. of the annual gross earnings of the corporation, if they exceeded a specified sum. 'The Co. was substantially the owner of all the stock of the lessee corporation. In an action by the lessor for the rent, the bill of complaint alleged that the .w. Co., by reason of its ownership of the stock of the lessee, received all the gross earnings of the latter company. of which it kept an account, and that it falsified the account. Held, assuming the allegations as true, that tl:!e 'V. Co. is not

"r.