Page:Federal Reporter, 1st Series, Volume 8.djvu/873

 L. 8, & M. S. EY. CO. ». N. T., C. & BT. L. Bi. CO. 859 �With some hesitation we announoe a similar conclusion in respect to the land at Harbor Creek station. I myself entertain serions doubt ■whether any portion of the plaintifE's land at this point is open to appropriation by the defendant. But, for lack of complete informa- tion, my mind has not reached a settled conviction. If the right of appropriation exists, it certainly ought to be exercised so as to avoid all nnnecessary injury to the plaintiff. The defendant's line, as located, divides the plaintifE's property, cutting off a strip of 41 feet in width along Boynton's line. If there is no engineering difficulty or other obstacle in the -way, the defendant had better consider whether it ought not to shift its location down to Boynton's line, and thus leave the plaintiff additional available space south of its southeriy track. �Upon the whole case as now presented, and after a careful con- sideration thereof, the court is of opinion that the motion for a pre- liminary injunction should be denied. And it is so ordered. �McKennan, C. J., concwring. The opinion of Judge Acheson an- nounces the decision of the court on the motion for a preliminary injunction in this case. The motion was argued before him alone at Erie, and was then denied; but as he assented to the request of counsel for a reargnment, and desired me to be present at it, I con- sented to sit with him merely that I might render him, by conference and suggestion, such assistance as I could, leaving still with him the ultimate burden of responsible decision. I concur with him in the deniai of the motion, and in the reasons given for it. �It is undoubtedly true that the real estate acquired by a railroad corporation by purchase or eondemnation, and held for the necessary enjoyment of its essential franchises, cannot be taken from it by another corporation bythe usual method of appropriation. But I do not agree with the argument that the extent of such acquisition is conclusively determinable by the directors of the corporation, and that the exercise of their power in this connection is questionable only on the ground of bad faith, as the equivalent of fraud, The power of acquisition is limited by the necessary wants of the corporation, and an exercise of it beyond this limit is not within its protection. I see no reason, then, why this limitation of the power of a corporation to acquire and hold real estate is not as proper a subject of judicial inquiry, where alleged encroachments by another corporation are to be determined, as the existence of the power itself. Upon the resuit of Buch an inquiry the decision of this case depends. In finally dispos- ��� �