We all agree that the judgment appealed from should be reversed, but are at variance over the reasons therefor.
The only plan presented by the plaintiff for straightening and enlarging the channel of the river provides for altering its course so that the channel at the point now crossed by the defendant’s track will not be used at all, but will be abandoned. If that plan is to be developed the bridge which the defendant is enjoined from erecting would be no obstruction. It would, therefore, be inequitable to require defendant, under the present conditions, to incur the largely increased expense of erecting and maintaining at this point a swing or draw bridge. The injunction should be vacated, as it is important to the defendant that the bridge should, be speedily constructed.
*137We do not determine the other questions discussed, nor do we hold that the defendant may not be required to remove the fixed bridge, if constructed, in case it becomes an obstacle to the development of the river. None of these questions may ever arise in a practical way, and there is no necessity of deciding them now. The ultimate rights of the parties will not be affected by the judgment now ordered.
Williams, Kruse and Robson, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellants to abide event upon questions of law and of fact, and temporary injunction vacated, with ten dollars costs.