Efford v. S. Pac. Coast R.R.

Opinion

We claim that the plaintiffs were owners of the leasehold interest in the land, and being in possession under their lease, the defendant had no right to take the land for the use of its railroad, except by consent of the plaintiffs, or by the judgment of a competent Court condemning the land to public use, and the payment of compensation. (San Mateo Water Works v. Sharp-stein, 50 Cal. 284; Sanborn v. Belden, 51 Cal. 266.)

Stewart <6 Greathouse, for the Eespondent.

It is incumbent on the appellants to show that there has been an abuse of discretion on the part of the Court in modifying an injunction. (Me Garrett v. Murphy, 1 Hilt. 132; Freeman on Cotenancy, 253.)

By the Court :

In the view we take of this case, we deem it unnecessary to decide whether the order appealed from dissolves or only modifies the preliminary injunction; and if the latter, whether it is an appealable order. It is a matter largely in the discretion of the District Court, whether, on the coming in of the answer, a preliminary injunction previously granted should be continued in force, dissolved, or modified; and, except in cases of palpable error or an abuse of discretion, the action of that Court in such cases will not be disturbed on appeal. (Godey v. Godey, 39 Cal. 167; McCreery v. Brown, 42 Cal. 462; Rogers v. Tennant, 45 Cal. 186; Patterson v. Supervisors, 50 Cal. 345.) Tested by this rule, wo see nothing in the facts disclosed by the record to justify us in disturbing the order appealed from.

Order affirmed. Eemittitur forthwith.