WESTERN & A. R. R. v. RAILROAD COMMISSION OF GEORGIA et al.

WESTERN & A. R. R. v. RAILROAD COMMISSION OF GEORGIA et al. (District Court, N. D. Georgia. September 12, 1921.) No. 171. Courts '§=328 (3)—Value of right of way and future maintenance of side track not considered in determining jurisdiction of court. On application for injunction, pendente lite and permanent, by a railroad against the-Railroad Commission of Georgia, to prevent the enforcement of an order requiring the putting in of an additional side track on the railroad’s right of way, wherein the petition discloses that the total cost of the construction will be' $1,260, injunction pendente lite will be refused, because the amount involved is insufficient to give the court jurisdiction ; the value of the portion of the right of way to he occupied by the track not being a matter which can be considered, because not taken from the company, and cost of future maintenance not being involved. ©=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In Equity. Suit by the Western & Atlantic Railroad against the Railroad Commission of Georgia and others. On application for injunction pendente lite. Application denied.' An application for injunction, pendente lite and permanent, was made by the Western & Atlantic Railroad against the Railroad Commission of Georgia, to prevent the enforcement of an order requiring the putting in of an additional side track at Smyrna, Ga. The petition, though averring the amount involved to be more than $3,000, discloses that the total cost of the construction would be $1,260, and the estimated annual cost of maintenance to be $200. There is no allegation of the value of the land of the right of way to be occupied thereby. Tye, Peeples & Tye, of Atlanta, Ga., for petitioner. J. K. Hines, of Atlanta, Ga., for defendants. Before BRYAN, Circuit Judge, and BEVERRY D. EVANS and SIBREY, District Judges. [MAJORITY — SIBREY, District Judge.] SIBREY, District Judge. No right is involved of the violation of which this case is but an instance, because the general right of the Railroad Commission to require the construction of side tracks is not questioned. The propriety of requiring the construction of this particular track is alone in issue. The cost in material and labor is stated in the petition to be but $1,260, and this amount alone is involved. The value of the portion of the right of way to be occupied by the track is not to be considered, because the land is not taken from the company, but is only devoted to a railroad purpose, for which it was acquired and is held. The cost of future maintenance is not involved now, because that is an incident of the future use. The maintenance cost for some years will be slight, and if the business done over the track does not justify its maintenance, the question of its abandonment will be open then. Because we think the amount involved is insufficient to give the court jurisdiction, an injunction pendente lite will be refused.