
    160 F. 862
    ALASKA PAC. RY. & TERMINAL CO. v. COPPER RIVER & N. W. RY. CO. et al.
    No. 1,491.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 3, 1908.
    
      Harold Preston, Shackleford & Lyons, and F. M. Brown, for appellant.
    W. H. Bogle, Charles P. Spooner, and Winn & Burton, for appellees.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above). The record here presents a case of two railroad companies, constructing roads over disputed ground. The appellees, if they build their road from Palm Point, must of necessity cross the terminal tract No. 1 B of the appellant, and also the appellant’s road. The record shows that, at the time of the application for the injunction, both companies were actively engaged in construction. The appellees had 500 or 600 men at work and a large amount of supplies on the ground. The appellant had constructed 1,000 feet of piling for its track, across which ran the road of the appellees. The court below found the evidence insufficient to sustain the appellant’s claim of title to the land in controversy. Upon a careful consideration of the record, we cannot say that there was error in that conclusion. If the mineral locations made upon the ground in 1901 were valid and subsisting, the appellant had neither title to nor right of way over the land in controversy, for it was not public land. The appellant claims under the act of May 14, 1898, and under the rights acquired through the homestead scrip survey of Byrne, but the latter has not ripened into title, and, as to the former, the statute limits the right of the railroad company to public lands. No steps have been taken to cancel the oil locations.

T^he appellant contends that the appellees can acquire no right to construct a railroad over the land in controversy, and that its survey is of no avail, for the reason that it had not assumed in its articles of incorporation the right to construct a road from Palm Point; citing Washington & Idaho Railroad Company v. Osburn, 160 U.S. 103, 16 S.Ct. 219, 40 L.Ed. 346. But the principal question here is not what are the rights of the defendant to construct its railroad. It is, rather, what are the rights of the respective parties in and to the particular tract of land in controversy? Has the appellant the title thereto, and is it vested with the exclusive right of possession? If so, the acts of the appellees will be enjoined on the final hearing, and should now be enjoined if the resulting injury is irreparable. But the appellees claim the right of occupation of the tract by reason of mineral locations made in 1901 and not canceled of record. The appellant answers that the mineral locations are void for want of discovery of oil and for want of annual assessment work. The appellees deny this, and contend that the evidence shows both discovery and assessment work. The court below declined to pass upon the question of title, both because of doubt as to the respective rights of the parties, and because of the doctrine announced in Cosmos Exploration Co. v. Grey Eagle Oil Co., 190 U.S. 301, 24 S.Ct. 860, 47 L.Ed. 1064.

It is to be observed also that there is lack of proof of irreparable injury to the appellant in the proposed construction of the appellees’ road. The evidence in the record shows that the appellant has constructed its road from its terminus toward the coal fields at Bering Lake, a short distance past the point where the appellees’ road crosses its line; that at that point the track is placed upon a trestle some 15 or 20 feet above the surface of the ground. The appellees’ road, also upon a trestle of like height, crosses the appellant’s road at grade. Such a crossing of the roads is no obstruction to the work of the' appellant in the further extension of its road toward the coal fields, and is no substantial injury to it. The appellees’ road would be a substantial obstruction, however, to the use of the terminal tract No. 1 B by the appellant if the latter showed any necessity for the immediate use of the same for the construction of its terminal yards. But no such necessity is shown. By the time when the appellant’s road shall be extended to the coal fields, and need shall arise for the occupation of the terminal tract, it is probable that the merits of the whole controversy will have been determined on the final hearing, and the appellant’s rights conserved by the final decree. The appellees assert that the articles of the Copper River & Northwestern Railway Company have been so amended as to pérmit the construction of their road from Palm Point. No proof of this fact was presented in the court below, but, if it be true, they will have the opportunity to establish it in the court below. In the meantime, a temporary injunction such as was prayed for in the court below would work serious, if not irreparable, injury to them. In the light’ of these considerations, we think the injunction was properly denied.

•The office of a preliminary injunction is to preserve the subject of the controversy in its present condition, in order to prevent the perpetration of a wrong, or the doing of an act whereby the subject of the controversy may be materially injured or endangered, until a full investigation of the case may be had. “A preliminary injunction will never be granted unless from the pressure of an urgent necessity. The damage threatened, and which it is legitimate to prevent, during the pendency of the suit, must be, in an equitable point of view, of an irreparable character.” 16 Am. & Eng.Enc. of Law 345. And the rule is well settled that the granting or withholding of an injunction pendente lite ordinarily rests in the sound discretion of the court to which the application is made, and that the ruling thereon is not subject to reversal in an appellate court unless there has been abuse of discretion evidenced by a disregard of the facts or of the principles of equity applicable to the case. Vogel v. Warsing, 146 F. 949, 77 C.C.A. 199, and cases there cited. The order of the court below is affirmed.  