Page:Federal Reporter, 1st Series, Volume 6.djvu/335

 CITY OF PORTLAND V. OEBGONIAN ET. CO. 323 �ing of tipie and expense; that no use is now being made of said levee, and that a track can, be laid across it without interfering with the use of it as a levee, and without mate- rially afiecting the surface of the ground. On Mareh 21st, the plaintiff showed cause against the application by the affidavit of its clerk, and the matter was argued by eounsel. �There is no doubt of the power of the court to grant thifl petition at this stage of the proceedings ; for, although the cause is not for trial or hearing in this court until the first day of the next term, — the second Monday in April, — ^yet it is in this court from the date of the removal, and such conserva- tory acts as the allowance or modification of an injunetion may be had therein at any time thereafter. Mahoney Min- ing Co. V. Bennett, 4 Sawy. 289 ; New Orleans City R. Co. v. Crescent City R. Co. 5 Fed. Eep. 160.* The final determina- tion of this case will turn upon the validity of the legislative act granting the use of the premises to the defendant. �The presumption is in f avor of the validity of the act, and at this stage of the litigation this presumption ought to have weight. At least it will not do to assume that the act is invalid, but only that it may be so. There are no particular equities in the bill which the defendant must answer before it is entitled to a modification of this injunetion. At best, it is only a suit to try the title of the defendant to property which is claimed to be subject to a public easement, and a preliminary injunetion is only allowed to preserve the prop- erty for such use, in case it is determined that the defendant has no title thereto. Therefore the defendant ought not to be any further restrained, until the invaiidity of its title is deter- mined, than is necessary to preserve the property for the pur- pose to which the plaintiff claims it is devoted. The property is an unimproved piece of ground, of which no practical use has ever been made as a public levee or landing, and probably never will be, until it is improved by the erection of wharves and warehouses thereon. The business of loading and un- loading vessels is not done in this country upon open quays or �*See, also, In the Matter of the Petition of the BarnemiUe <e Moorhead Ry. Co., 4 FED. Rbp. 10. ��� �