Page:Federal Reporter, 1st Series, Volume 6.djvu/336

 824 FEDEBAIi BEPOBTEB. �mud banks. The use of the property for laying and operating a track and side track thereon during the pendency of thie suit, so as to enable the defendant to conneet the construction of its road by rail with its wharf on block 71 aforesaid, and complete it in time to prevent a forfeiture of the grant, will work no possible harm to the plaintiff or public, and may be of much benefit to the defendant ; for it seems that by the act the defendant must complete its road "to the said prem- ises," or place "erections" thereon of tho value of |10,000, before January 1, 1882, or the grant is forfeited. On account of this injuuetion it cannot place the "erections" on the prop- erty, and, unless it is modified as suggested, it may not be able to comply with the other condition. �Indeed, there is but little reason for a preliminary injunc- tion in this case at ail. As bas been said, the public is making no use of the property as a levee or otherwise, and cannot until it is improved ; and if the defendant was even permitted to go on and build a depot thereon, as well as a track and side tracks, what harm would resuit to the plain- tiff from it ? If the final determination is against the defend- ant, it may be compelled to remove them, (C. S. U. Go. v. V. d G. H. W. Go. 1 Sawy. 4-82 ;) or, what is more likely, the plaintiff may keep the improvements as a part of its property and thereby gain what the other loses. Nor is there any sug- gestion that the defendant is insolvent, andunable torespond in damages for any injury it may cause to the property of the plaintiff. If this were a public levee or landing in fact as well as name, and the defendant was materially interfering with the public use of the premises by its proposed "erections" and "constructions," there would be ground for restraining it until its right to do so was finally determined. But, as it is, there is no public use to be disturbed, and the actual con- troversy is confined to the right of the defendant to the ex- clusive use of the premises; and their use by it in the meantime, in such a way as to cause no injury thereto, and at least not to materially interfere with the publie use, if any, ought not to be restrained. �Again, in the consideration of this question, it ought not ��� �