The order appealed from should be reversed, and the application granted, so far as to restrain the defendant, during the pendency of the action, from enlarging, extending, or increasing its Terrace Depot, and from constructing or using addi
Upon the argument in this court, defendant’s ■ counsel stated that, after the order appealed from was made, the defendant attempted to make the new improvements, but was prevented from doing so by the city authorities, and thereupon desisted and removed its material, and proposed to await the trial of the action. This being the condition of things, this court should provide that the parties be left as they are until the action is tried. We ought not, in advance of the decision of the case, to restrain the operation of the railroad in the manner it has been operated for many years. The plaintiff can wait. It did wait from September 20, 1899, until March, 1901, without applying for any injunction, of even serving its complaint in the action; and it only then revived the action and applied for an injunction, apparently, because the defendant was proposing to add to the buildings and tracks in the Terrace. On the other hand, the defendant seems to be entirely willing to await the trial of the action on the merits before making its improvements, and we think it should be made entirely certain that it will so wait by making an injunction order to that extent.
Without, therefore, attempting to pass upon the real legal rights of the parties involved in the action, the order appealed from should l^e reversed, and the application granted, so far as to restrain the defendant during the pendency of the action from enlarging, extending or increasing its Terrace Depot, and from constructing or using additional switches, turnouts, or tracks in the Terrace, without costs of this appeal to either party. All concur.