Pollock v. The Cleveland Ship Building Co.

it a contract to build any more than any contract for repairs."

Many authorities cited at the argument have been examined, which we do not deem it necessary to refer to. They are not in entire harmony. Those readers who care to pursue the subject in extenso, will find the cases cited in the briefs, and will find themselves well repaid by a persual of the able and interesting arguments of the respective counsel.

Without taking space for general discussion, our conclusion is, that the work of placing engine and boilers to the vessels of the defendant, as they lay moored partly in front of plaintiff's land, whether done by an independent contractor, or by the defendant itself, was a maritime purpose, an incident to navigation and commerce which the defendant, as one of the public, had the right to pursue in the legitimate use of the highway, so long as such use did not unreasonably impede navigation. The mooring of vessels there, though they did overlap in front of plaintiff's land, did not constitute trespasses, and the plaintiff, under the facts found, has no standing in a court of equity to enjoin such use. There was, therefore, no error in the refusal of the circuit court to allow an injunction as to this, the main branch of the case.

2. The carrying of lines across the river bank of plaintiff, presents a wholly different question Those acts invaded the real property of plaintiff the title to which is not qualified by any right in the public; it is absolute. It was the judgment of the circuit court that such acts resulted in no real damage to plaintiff, and that by reason of the record in this case, their repetition, no matter for

Pollock v. The Cleveland Ship Building Co.

what duration of time, could not ripen into a right by prescription, and hence plaintiff was not entitled to any relief.

We are unable to agree with this conclusion. The acts complained of were trespasses. It is by no means clear, that they would not, if pursued long enough, grow into a prescriptive right. It isn't necessary to ascertain this with positiveness. It is enough that if there be any doubt, the risk should not be imposed upon the plaintiff. And it is no hardship upon defendant to say that if it needs to use plaintiff's land it can do as other people do in like circumstances-obtain a right to such use by negotiation. The very fact that the trespasses are in themselves trifling, and the damage, if any, so small that suits at law to recover would be impracticable, affords an additional reason for granting an injunction.

As to this ground of complaint the judgment of the circuit court will be reversed, and judgment entered for plaintiff in error.

Judgment reversed.

The City of Cincinnati v. Railway Co.

THE CITY OF CINCINNATI v. THE CINCINNATI INCLINED PLANE RAILWAY COMPANY.

ERROR to the General Term of the Superior Court of Cincinnati.

THE CINCINNATI STREET RAILWAY COMPANY v. THE CINCINNATI INCLINED PLANE RAILWAY COMPANY, ET AL.

ERROR to the Special Term of the Superior Court of Cincinnati.

Suspension of operation of decree-Power of courts as to-Suspension must be by court rendering judgment, or on error-Application for extension must be before expiration of time.

1. When a question of law or fact is reserved by the Superior Court of Cincinnati, at special term to the general term upon a bill of evidence, and final judgment is rendered thereon, the general term has no power to remand such judgment to the special term for further proceedings. The cause may be remanded to the special term for trial as to matters left unadjudicated, but in such trial, the judgment must be taken and held as final, as to the questions upon which it was rendered but it may be used as a factor in moulding the decree covering the whole case.

2. When it is provided in a final judgment, not rendered in a proceeding in error, that its operation shall be stayed for a given time, with liberty to apply for an extension of the time, such application must be made to the court rendering the judgment, or having control of it on error.

3. A final judgment was rendered by the Superior Court of Cincinnati, at general term, upon questions of law and fact on a bill of evidence reserved at special term to the general term, in which judgment it was ordered that its operation should be stayed for six months, with liberty to apply for an extension of the time. Upon proceedings in error the judgment was affirmed by this court and remanded to the general term for execution. Thereafter the general term remanded the cause to the special term for further proceedings in accordance with the terms of the judgment; and on motion for that purpose,

The City of Cincinnati v. Railway Co.

the special term granted a suspension of six months additional time, with liberty to apply for a still further extension of time: Held: That the general term had no power to remand the judgment to the special term for such further proceedings, and that the order of suspension made at special term is void, for want of jurisdiction of the subject matter.

4. While a court may vacate or modify its judgments or orders as provided by statute after the close of the term of court at which they were rendered, the court has no power in the absence of proceedings under the statute, to suspend the operation of such judgments or orders after the close of such term, except in so far as that power is expressly reserved in the entry of the judgment; and under an order appended to a judgment by which its operation is suspended for a definite period, with the right to apply to the court for an extension of such suspension, the application for such extension must be made before the expiration of the time of the original suspension, and unless the application be so made, the court is without authority to grant it. Under such an order there is no power to grant a new suspension after the expiration of the original suspension.

(Decided June 23, 1897.)

The city of Cincinnati commenced its action against The Cincinnati Inclined Plane Railway Company for the recovery of certain car rentals claimed to be due, and to enjoin said Inclined Plane Railway Company from maintaining and operating its cars upon more than one track on Auburn street, between Mason and Vine Streets; and also to enjoin said Railway Company from maintaining its tracks and operating its cars upon any tracks on Main, Court, Walnut, and Fifth streets in said city.

Issues were made up and the case tried at special term, and reserved on bill of evidence to the general term, in which the following judgment was rendered on the 21st day of October, 1893:

"This cause came on for hearing as reserved from special term upon the certified bill of evidence herein, the original pleadings and papers.

The City of Cincinnati v. Railway Co.

and was argued by counsel; on consideration whereof the court find on the issues joined for the plaintiff, and that defendant, the Cincinnati Inclined Plane Railway Company, at the time of the commencement of this action was unlawfully maintaining and operating in the city of Cincinnati a street railroad by double track on Main street, between Mulberry street and Court street; by single track on Court street between Main and Walnut streets; by single track on Walnut street between Court and Fifth streets; by single track on Fifth street btweeen Main and Walnut streets, and by single track on Main street between Fifth and Court streets, together with the necessary poles, wires and other appliances for the operation of the same by electricity as a motive power; further that at the time of the commencement of this action said defendant was unlawfully maintaining and operating in the city of Cincinnati more than one street railroad track on Auburn street between Mason and Vine streets. And thereupon the defendant moved the court to set aside its findings herein, and for a new trial upon the ground that said findings and the judgment of the court thereon are, and each of them is, contrary to the evidence and contrary to law, and that the same ought to have been in favor of the defendant and against the plaintiff, which said motion the court overruled, to which ruling of the court defendant at the time excepted and presented to the court its bill of exceptions herein, which being found by the court to be true, is allowed and signed, and on motion is hereby made a part of the record of the case.

Wherefore, it is adjudged and decreed that the defendant be and the same is hereby perpetually