FEDERAL REPORTER ·
servitode'imposed on the right of way will not render it any less than before to operate a ferry across the river, as it is not alleged,or even suggested, that any proposed changes made along the right of way to adapt it to general travel will obstruct access to the ferry landing, either on the land or water side, or impair any other riparian right. In short, the appellees, in their bill, have not alleged any ioss or inconvenience as liable to enlJue:from the new use, except tllat the opening of the bridge for the accommodation of general travel will lessen the patronage of the ferry; and this is evidently a species of damage against which neither a court of law or equity can afford the appellees any protection. It is a damage not due to the fact that by destroying some riparian rij1;ht of the appellees,or'by obstructing the approaches to the ferry landing, the railway company has rendered it less feasible to operate a ferry; but it is a damage that is wholly due to the fact that a new means of crossing the river has been authorized by congress, which enters into competition with the ferry, and renders the business less profituble. It is hardly necessary to add that congress was not bound to provide compensation for a consequential injury of that character, when it authorized the construction of a bridge, as the ferry franchise was not inlringed or taken, within the by building the bridge. And the same menning of the proposition\\'ould hold good if the appellees had had a special franchise to operate a ferry for a term of years, instead of a ferry license from the Cherokee Nrition, renewable annually, which is all that the present reeord-rliscloses. Parrott v. City of Lawrmce, 2 Dill. 332; Bush v; Bridge Co., 3 Ind. 21; Harlj(YT'dBridge (b. v.Union Ferry Co., 29 Conn. 210; Clutrle8 River Bridge ,v. Warren Bridge, UPet. 420. In view of the considerations to which we have adverted, \\'e are satisfiedthat the complainants below were not, as a matter of right, entitled to injunctive relief, and that the existing injunction should not have been granted, e"en though we concel!e, for the purposes of the present decision, that thea<1ditional use to which the railway company proposed to devote its right of way was of such character' as entitles the '.JompJainants to some additional compensation. It was undoubtedly a matter of much public concern to the citizens of Ft. 8uHth and the Indian Territory that vehicles and foot-passengers should be allowed to use the bridge a8 soon as possible, and that necessitated the use to a limited extent of appellant's right of way. When congress authorized the latter use (as we think it did) it was not incumbent on it to require compensation for the additiOlial servitude to be pail! in advance of its actual enjoyment by the public, even if some f\llditional compensation is recoverable. Oherokee NlltiO'(l. v. Railway Co., 135 U. 8. 641-659, 10 Sup. Ct. Rep. 965. Furthermore, the appellees have alight of action at law to recover such ,addit,ional compensation as they may be entitled to. Railway Co.-v.dlivine, 23 Kan. 591; Railroad Co. v. Bilker, 45 Ark. 252; Lewis, Em"iDom. § 623, and citations. But the most, important considerationbeaTingontlna right to aD' injunction is the fact that, in the of the authority granted toW by congress, the railway company does not' propose, to intrude upon the possession of any lands now occu-,
V. LE }l']';ORE.
pied by the appellees, or to do an act that will occasion :njury to any considerable extent. Thedamages,if any, to which the appellees can' lawfully lay claim, are certainly very small, if not purely nominal. We recognize the rule that legal 'rights of every description are entitled to protection, no matter howslllall their money value may he, but a 'court of equity is not bound to afford protection by an unconditional order of injunction, when adequate relief may be afforded in Bome other manner, whether the right involved is of great or little value. BCI.88ett v. Man1ifacturing 0>., 47 N. H. 437; McElroy v. Kansas Oily. 21 Fed. Rep. 257; Eris R. 0,. v. Delawa1'6.L. &: W. R. 0>., 21 N. J.Eq. 291, 292. We are of the opinion that the' circuit eourt would' have gone quite far enough in the case at bar, had it required the appe+Iant to give a bond in a 8um, not exceeding $2,500, conditioned to pay snch damages. if any, as the complainants below might thereafter be adjudged to be entitled to, by any court of competent jurisdiction, in consequence of the allegedadditionaJ.. servitude imposed or tbrel:'ltened to be imposed on its right of way. Entertaining these views, the order of injunction appealed from is bereby vacated and annulled, the existing injunction it dl8sd1ved,the cause is remanded to the lower court, with directions to take a bond for the protection of the appellees not exceeding the amount. and with conditions as above indicated.
(C'rcuit CO'l£1'1 Q/' AppeaZl,
Circuit. January 25,Ill9l.)
Appeal from the Circuit Court of the United Statea for the Western. District of Arkansas. ..' , H. 8. and .Ale:». G. Oochran, tor John 11, Roger,. for appellee. .'. .' Before CALDWELL. CircUit Judge. and SumAS and T1JAYEB.District JUdges.. ", . TltAYER.District. Judge. This is an appeal from an order·granting and continuing a preliminary injunction. The .same questions arise: that have been fully considered and determined at. tbe PJ'esent in the case of the same appellant against Gabriel L.Payne and Houston J.Payne. 49 Fed, Rep. 114·.. For the reasons stated the opinion on.fiie in the'last-mentioned cause the order ot injunction appealed from is vacated andannulloo. the existing injunction is di8solved. and the cause is remanded to the lower,court. with directions to take a bond wit.b suretieil :tr!>m the in _IIUIll not to exceed $2.WO, conditionl3d that the appellant will par such damages. if any. M the.appellell may be adjljdged to be entitled to. by .any co,urt'of competent junsdiction. in' corisequence ol'tbe alleged lidditlonal servitudlt imll08ed. or threatened to 'be "Uoposed. on the appellarit'a right of . way. .,'·.. . .