pany or of the shipper to pay it. The case, indeed, is not ripe for a final decree. Upon this preliminary hearing the decision will therefore be confined to matters distinctly in issue. The prayer for temporary injunction against the express company will be denied, and the railroad commission will be enjoined conformably to the prayers of the bill. It is not deemed necessary to enjoin the attorney general, for it is presumed that the eminent lawyer who is the official head of the bar of the state will, without such injunction, accord all appropriate respect to the decision of the court.

PARISIAN COMB CO. v. ESCHWEGE et al.

(Circuit Court, S. D. New York. March 31, 1899.)

EQUITY PRACTICE-TAKING TESTIMONY-POWER OF COURT TO LIMIT.

In the taking of proofs in equity in a circuit court, a witness cannot be excused from answering a question because deemed immaterial by the court, as the party is entitled to have the testimony in the record for use on appeal.

On Application to Require a Witness before a Master to Answer a Question.

John R. Bennett, for the motion.

James A. Hudson, opposed.

LACOMBE, Circuit Judge. This is another application to require a witness to answer a question propounded during taking of proofs in equity. As has been so often pointed out, the decision of the supreme court in Blease v. Garlington, 92 U. S. 1, seems controlling. It seems as if the information sought to be elicited were not essential to complainant's case, nor, indeed, relevant or material to the issues which, according to practice, will be first argued, viz. validity of patent, construction of claim, and infringement. Nevertheless this court is not the final arbiter as to whether the testimony is or is not immaterial, and, in view of the object intended by the amendment of the sixty-seventh rule, it should obtain and preserve the answers for the benefit of the appellate tribunal. Blease v. Garlington, supra. As to order of proof, it is not understood that the trial judge will be without power to enter a final decree assessing damages, if the evidence warrants it, without going through the formality of an interlocutory decree, and reference to a master. The question must be answered.

LAKE ERIE & W. R. CO. v. CITY OF FREMONT, OHIO.

(Circuit Court of Appeals, Sixth Circuit. March 7, 1899.)

No. 607.

1 INJUNCTION-RESTRAINING ERECTION OF NUISANCE-SUFFICIENCY OF EVIDENCE. To entitle a city to an injunction restraining a railroad company from constructing an embankment for its tracks, over its own land, across an island in a river, upon the ground that such embankment will increase 92 F.-46

the danger of overflow in times of high water, the probability of such result must be clearly shown. The mere possibility that conditions might be such that the danger would be increased by the embankment is not sufficient to authorize a court of equity to interfere with a use of property which is rightful.

2. EQUITY PRACTICE-EFFECT OF FINDINGS OF MASTER.

In dealing with exceptions to a master's report, the conclusions of the master, depending upon conflicting testimony, have every reasonable presumption in their favor, and will not be set aside unless error or mistake clearly appears.

Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio.

This is an appeal from a decree of the circuit court of the Northern district of Ohio, Western division, perpetually enjoining the Lake Erie & Western Railroad Company from constructing a solid embankment of earth, in place of the trestle upon which its track is now laid, across an island in the Sandusky river, within the corporate limits of the city of Fremont, Ohio. The cause was removed from the common pleas court of Sandusky county to the court below by the Lake Erie & Western Railroad Company, a corporation of the state of Illinois; and in the court below the city of Fremont filed an amended bill, to conform to the practice of the federal courts of equity. The averments in the bill set forth the threatened construction of such an embankment, and stated that its substitution for the present trestle would, in times of ordinary high water, flood the water back upon the streets, alleys, and houses of the city; interrupting public travel, and stopping the escape of the sewage, and exposing the residents of the city to disease and great discomfort. The defendant railroad company answered the bill, and specifically denied that the contemplated embankment would in any degree increase the danger from floods to the inhabitants of the city of Fremont. A replication was duly filed, the issues were made up, and the cause was referred to a master to take evidence, and report upon the question whether the building of the proposed embankment would cause the danger as alleged by the complainant in its bill, and whether, if there was any danger from the embankment, it might be avoided by omitting part of it. The master heard the witnesses upon both sides of this question at great length, and returned, with his conclusions and findings of fact, the evidence reduced to writing by a stenographer. amounting in all to 1,650 printed pages. The master's conclusion was "that the building of the embankment across said island in the Sandusky river will not cause the injuries * complained of in the said complainant's bill, or any part thereof. If I had any doubt on the subject, I would recommend the construction of a bridge span 120 feet in the clear, similar to that over Front street, located about the middle of the island. Such a span would carry off all ice, that would not otherwise be deflected and carried off by the training dyke formed by the embankment, much better than the pres ent trestlework, and would meet all emergencies; but, as I have no such doubt. I make no such recommendation."

The Sandusky river is a river 60 miles in length, emptying into the Sandusky Bay, an estuary of Lake Erie. The river drains a watershed of 1,200 square miles. It enters the city of Fremont at about the center of the south corporation line, and, pursuing a course somewhat east of north, leaves the corporate limits at the north corporation line, a short distance from the northeast corner of the city proper. It divides the city, with the more populated portion on the west. Fremont contains about 8,000 inhabitants. The main street running east and west is State street, which crosses the river at a point where the water at its ordinary stage is on the level with that of Sandusky Bay and Lake Erie, and is slack water. Sandusky Bay, following the meandering of the river, is 18 miles from Fremont. For a distance of 400 or 500 feet upstream from the State street bridge, at ordinary stages of the water, there is slack water, and no current. Below the State street bridge the river widens out, and at a distance of 1,000 feet divides into two channels. The main channel is the west channel, the east channel being much narrower. The two channels make the island across which it is proposed to build the

embankment in controversy. The Lake Erie & Western road enters Fremont from the northeast, crosses the narrower of the two channels, just referred to, on the bridge, crosses the island upon a trestlework, crosses the west channel upon a wider iron bridge, and then traverses the western portion of the city. The locus in quo may be better understood from the following maps:

The second map is more accurate, in showing the parallelism of the trestle and the eastern branch of the river, the dimensions of the island, and the length and size of the small bayou on the eastern side of the island, which enters from the north, but does not extend south to the river, as shown in the first map. From a deep dam, 21⁄2 miles upstream, south from the State street bridge, the fall to slack water under the State street bridge is about 22% feet,

or 9 feet to the mile. After entering the corporate limits, the first obstruction in the stream is the bridge of the Michigan & Lake Shore Railroad Company. A short distance below this is an old city dam, broken and not in use, and a short distance below the dam is the railway bridge of the Wheeling & Lake Erie road. There are no obstructions in the stream between that bridge and the State street bridge. The distance from the Lake Shore bridge to the State street bridge is 2,700 feet. From the Lake Shore bridge to the dam below it is about 400 feet, and from the Lake Shore bridge to the Wheeling & Lake Erie bridge about 700 feet. From the Wheeling & Lake Erie bridge to slack water, a distance of about 1,400 feet, the current is quite rapid. The descent from the surface of the water, at ordinary stage, from the Lake Shore bridge to the State street bridge, is about 5 feet, and from the Wheeling & Lake Erie bridge to the State street bridge about 3% feet. The Lake Shore bridge has two spans, with 972 feet for each span, and an opening in the clear of 195 feet. There is, in addition to this, what is called a "toe span" of the same width, under which there is dry ground about 6 feet above the surface of the water, at ordinary stage. The Wheeling & Lake Erie bridge has three spans, of 121 feet each, or an opening of 363 feet. Both these railroad bridges are built upon solid embankments extending across the valley of the stream. The State street bridge has three spans; the end spans being 85 feet in the clear, and the middle span 140 feet, affording a total opening of 310 feet. The bridge of the defendant company, in the west channel, 1,800 feet below, consists of four spans, of 132 feet each, with an opening in the clear of 528 feet. The floor of the bridge is 26 feet above the water at ordinary stage. In addition to the four spans already referred to, there is a fifth span, on the west side, over the Wheeling & Lake Erie Railroad track, which is laid on the top of the west bank of the river. This span is 120 feet in the clear. The bridge across the east channel has three spans of 121 feet each, or a total opening of 363 feet. The bridge across the east branch is placed askew the channel, and the opening for the water at right angles to the current is but 200 feet: making a total opening in the two bridges under which the water passes of 728 feet, at about right angles to the current. The Wheeling & Lake Erie track on the west bank of the river is about 11 feet above the ordinary stage of the water, and about 51⁄2 feet above the average height of the island opposite: so that, when the river is bank full in a flood, with the water up to the rail of the Wheeling & Lake Erie track on its west bank, the water will be about 5 feet in depth on the island, on an average. There are parts of the Third ward of the city of Fremont on the east side of the river, sparsely populated, which are as low as the island, and some very little above it. The island has an extreme width of about 750 feet, and a length of 2,833 feet. The east pier of the west channel bridge is 500 feet from the extreme southernmost point of the island, while the west pier of the bridge over the east branch is 1,800 feet from the same south point of the island. The length of the trestle from the east side of the bridge over the western channel to the west side of the bridge over the eastern channel is about 1,200 feet. It is built on a curve. Just east of the bridge over the west channel, the trestle continues in the same direction as that bridge for about the length of the bridge, and then curves to the northward in such a way as to make the trestle from that point nearly parallel with the east branch of the stream, and but a short distance therefrom. There are 85 bents in the trestle, which is of wood; each bent being 12 feet wide. A little less than a mile further down the stream, beyond the bridge across the main channel, and about 2,000 feet below the end of the island, after the river has narrowed considerably, it makes an abrupt bend at right angles to the northeast. That is called the "First Boyer's Bend." After running some 2,000 feet, it turns again towards the north, making a second bend between high bluffs. The second bend is called the "Second Boyer's Bend," and is 1% miles north of Fremont. The river at Second Boyer's bend is about 350 feet in width. When, however, the water is up to the level of the Wheeling & Lake Erie track under the bridge over the west channel of the Lake Erie & Western Railroad, the width of water opening at Boyer's Bend is 450 feet. The surface of the water at ordinary stages is the same under the State street bridge and 600 feet above, under the Lake Erie & Western bridges, and at Second Boyer's bend. As already de