. I decline to grant the injunction to the defendant Bray on three grounds:
First. He already has an injunction against the acts of the complainant sufficient to put it in contempt of the court, unless its action is justified by the award, and defendant can test that question by a motion to punish for contempt.
Second. The value of the land in controversy, from Bray’s standpoint, is beneath the dignity of this court. No question was made but that the award was a fair one as to value, and the affidavits show that the value of the property does not exceed $5, and, apparently, it is incapable of beneficial use, except for a second railroad.
Dr. Story (Story Eq. Pl. § 500), after stating the familiar reasons why the court will not entertain suits for trifling matters, says:
“ In England the rule of the courts of equity is not to entertain a bill under the value of ten pounds sterling, or forty shillings per annum in land, except in special cases, such as in cases of charity, in cases of fraud and in cases of bills to establish a right of a permanent and valuable nature.”
He cites numerous authorities in the notes, to support this position, and I have taken the trouble to examine them, so far as they relate to land.
In the old book “ Cursus Cancellarie,” published in 1723, in stating the grounds which will constrain the court to refuse to entertain a suit, it is said (at p. 9):
“ Or if it be for land not worth forty shillings a year, or for anything else under the value of ten pounds, those are regularly disallowed here; and sometimes upon notice taken thereof by the court upon motion, or upon affidavit only, before the cause comes to a hearing, it is dismissed; but if not, when it comes to a hearing it is dismissed.” 1
And then cites several cases from Cary’s Reports. Among them I refer to Townly v. Osney, Cary (16mo. ed. 1820) 105, where the report is: “ That it appeared, as well by the plaint-ant’s bill, as that Osney, one of the defendants, hath made oath *105that the lands in- the bill is not worth forty shillings per annum; therefore dismissed generally, and not without costs.”
And again, in Morgan v. Ap. Richard and Lewis, Cary 121: “Ap. Richard maketh oath that the lands complained of are under forty shillings by the year; therefore dismissed.”
Both these cases were decided in 21 and 22 Eliz.
In Babb v. Dudeney, Toth. 155 (see 1 Eg. Cas. Abr.75), the court declined to grant a partition because the matter was but £9 a year.
Eor other cases, both ancient and modern, see 4 Chit. Eg. Dig. (4th. ed.) 3242, and Swedesborough Church v. Shivers, 1 C. E. Gr. 453 ; Allen v. Demarest, 14 Stew. Eg. 162 ; 1 Dan. Ch. Pr. 328, 329.
In the case in hand, it is further to be observed that the construction of the railway upon the island will increase rather than diminish the value of the strip taken.
In the third place, I think the court ought not to help the defendant, because he is asking the extraordinary aid of the court for an inequitable purpose.. And I refer, in support of that position, to Piedmont Railway v. Speelman and Mayer v. Piedmont Railway Co. (Court of Appeals of Maryland, June 23d, 1887), 67 Md. 260. One of the head-notes is: “A court of equity will not lend its aid to an assignee of the lease of land through which a railroad company seeks to condemn a right of way, and enjoin it from so doing, when it is shown that the assignee is the president of a rival road, and denies the power of the first company to condemn the land under its charter, but will leave him to his remedy at law.”
"With regard to the injunction asked for by the complainant railroad company, it also is in no position to ask the aid of the extraordinary power of the court. It is not asking for the enforcement or administration of any primary equitable right, but for its protection in the enjoyment of a legal right; and in such case the rule applies that its legal right must be clear. And how fully soever I may appreciate the inequitable conduct of the defendant, I must not be moved by that consideration to grant to the. complainant aid to which it is not clearly entitled; *106and if any serious doubt is thrown upon its'title by the allowance of the two writs of certiorari, I must deny its prayer for interim relief and leave it to its remedy at law. , ,
Complainant relies upon the act of 1880, above referred to. In turn, .the defendant denies the constitutionality of that act, and claims that the writs of certiorari operate, ex proprio vigore, as a stay.
The practice seems to be well settled for judges of the supreme court, in allowing writs of certiorari, to state in .writing, whenever they see fit to do so, whether they shall or shall not operate as a stay. So that their power to declare whether they shall .or shall not .so .operate seems to be well settled.
Now conceding, as of course I must do, that it is beyond the power of the legislature to take away the right of the supreme court to allow a writ of certiorari, with all its consequences, including the stay of all further proceeding under the proceedings removed, yet I am of the opinion that it is within the power of the legislature to so . far regulate the use of the writ and the practice under it as to compel the judge of the supreme court who allows the writ to expressly declare that it shall operate as a stay if he so intends; and the legislature having that power, I am inclined to think that it is possible to give effect to the act in question within the limits of the constitution by construing it as imposing that duty upon the judge allowing the writ.
But this is a mere suggestion of my own, and I cannot be at all sure that the supreme court will ever adopt it. Indeed, the latest utterances of that court to which my attention has been called, found in the report of the case of Green v. Jersey City, 13 Vr. 118 (at pp. 121, 122), are against the construction which I have.suggested.
I am informed that the ground on which the second writ was allowed was that the judge ryas in doubt whether the effect of the first writ was not to absolutely stay further proceedings under the appointment of commissioners.
' With regard to the effect of the second writ, my impression *107is that it could not affect the complainant’s right to proceed under the award. If the title once vested under the award, then the mere allowance of a. certiorari to remove the award to the supreme court would not, as it seems to me, have the effect of divesting its title. That result would only be attained by an actual setting aside of the proceedings, including the award. In other words, the title would vest by the signing and filing of the award, subject to being divested by judgment setting it aside.
But, with regard to the first writ removing the proceedings before the award was made, I am unable to see how the effect of that can be avoided, and come to the conclusion that so much doubt is thereby thrown upon the complainant’s title that I must refuse to grant an injunction protecting it in the premises; and leave it to its rights at law.