Page:The Green Bag (1889–1914), Volume 19.pdf/752

 A CLOSED CHAPTER IN AERITIME LAW across the ocean is as far superseded as the ox cart was seventy-five years ago for travel across the prairies; when the war airships have so completely supplanted the old battleship as the gatling gun has super seded the bow and arrow, we can hardly realize that this tremendous transformation, penetrating every department of civilized life, has taken place within the last fifty years. In the bitter struggle which raged between the railroads and the aircraft companies from 1934 to 1940 and even down to 1942 when the great A. & P. Rwy. went out of existence every attack that ingenuity could devise was resorted to by both sides. The decision in the Burnes case came in 1936 when the fight between the railroads and the airship companies was at its height and suggested a weapon that was eagerly seized and viciously used. The railroads were the inspiration of practically every suit of trespass that was brought, and when ever a property owner friendly to the rail road interests was found over whose land a line of aircraft operated he was made a plaintiff in an action of trespass. There was no limit to the number of actions that land owners could bring, since each passage of the airship constituted a separate trespass. At first the only result to be gained by the railroad was the purely negative one of impairing the finances of the airship com panies by making them pay the costs of the almost inexhaustible supply of litiga tion. The effect of this can be estimated when in the city of St. Louis alone some thing over 7000 judgments were given against airship companies in the year 1939 and the costs in each case averaged about $50. But this litigation although successful was found to be slow in effecting the ulti mate result aimed at and accordingly we find the railroad attorneys looking around for some other line of legal procedure that would more effectually and speedily hamper the operations of the air companies. They hit upon the design of resorting to equity and securing an injunction in behalf of

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property owners against the operations of air craft over their land. The leading case on this subject is Penn. Railroad Co. v. U. S. & Mexico Airobile Company, 635 U. S. 42, a case arising in the eastern district of Illinois. In the course of an elaborate opinion the Supreme Court said: " In this case a perpetual injunction was granted restraining the defendant company from operating its air machines over and across the land of the plaintiff company. The evidence conclu sively showed that the defendant company operated an air craft for the transportation of persons and freight between the city of St. Louis and the city of Mexico and that its machines to the number of 20 per day passed continuously over the land of the plaintiff. Under the long line of author ities beginning with Burns v. St. Louis and Chicago Airship Co. it is clear that defendant is a trespasser. It further appears that the trespass has been and is likely to be con tinuous. A court of equity will prevent the invasion of the legal rights of another, when it is shown that such right has been repeatedly invaded and is continuously threatened. In No. 4 Pomeroy Eq. Juris prudence 1357, it is said that injunction is granted to prevent the commission of a tort in such cases because being continuous and repeated the full compensation for the entire wrong cannot be obtained in one action at law for damages and many decisions are cited by the learned author in support of this statement of the law. In the Debs case, In re Debs, 158 U. S. 564, this court went so far as to prevent by injunction the commission not of a civil tort but of a crime. We are therefore of the opinion that both upon reason and authority the action of the lower court in awarding the injunction was proper and should be affirmed. The decision did not meet with universal approval, and in some of the state courts a different result was reached. Among such decisions are O'Brien v. San Francisco and Boston Airoplanc Co. 924 Mo. 265, Addicks