Sullivan v. Moreno-Argument of Counsel. tant. If the appellant should be, as he actually is, the assignee of a charter for a wharf at the foot of Adams' street, the construction of that wharf might be treated as a violation of the injunction, upon a strict construction of the terms of the order. E. A. Perry for Appellee. It appears by the answer or affidavit of Sullivan that there is a suit at law pending to determine the title to the soil between the parties. So, even if the question of Moreno's title to the soil upon which Moreno's wood yard is situated were material, the Circuit Court rightly exercised its discretion in granting the temporary injunction and in granting its aid to stay irreparable mischief; it properly and of necessity was bound by this court's decision conveyed in the following language: "If the thing sought to be restrained is in itself a nuisance, and it so appears from the facts set forth in the bill, the court will give its aid to stay irreparable mischief and will grant a temporary injunction, in the first place, until the parties can have a hearing at law." Thebaut & Glazier vs. Conova, II Fla., 143, 168, 169, 3d Daniel's Chan. Practice, 1850, & Notes; Earl of Ripon vs. Hobart, 3 Mylne & Keen, 169, 180. It is here alleged in the sworn bill, and not denied by the affidavit of defendant, that the thing sought to be restrained is the obstruction to navigating the public highway, the Bay of Pensacola, which is clearly in itself a nuisance, and the court rightly gave its aid to stay irreparable mischief, determination by law of where the title to the ground may be. The ownership of the soil in whomsoever it may be is subject to the paramount right of all the world to use the navigable waters over it as a public highway. Alden vs. Pinney, 12 Fla., 348, 391. Sullivan v. Moreno-Argument of Counsel. The thing here sought to be restrained being, as alleged in the bill and not denied, an unauthorized structure in and encroachment upon the navigable waters of Pensacola bay, is a public nuisance, per se, whether or not it produced any public injury. People vs. Vanderbilt, 26 N. Y., 287; Wood's Law of Nuisances, 653, and the numerous cases cited in note I. But the question of legal title here is in no wise involved, for while it is a general rule that the plaintiff must prove his right: "If the injury is merely to a possessory right, (or use) possession (or use) alone need be proved." Anonymous, 1 Vent., 264; Winford vs. Wallaston, 3 Lev., 266; Coryton vs. Lytheybe, 2 Saund., 114; Tenant vs. Goldwin, 1 Salk., 360; Reg. vs. Bucknell, 2d Ld. Raym., 804; Wood's Law of Nuisance, p. 882, $843. And possession alone is title, and he who hath such title can hold against every one but him who hath a title superior to it. Fisher vs. Philadelphia, 75 Penn. St., 392. Take the case of Lutterloh vs. Mayor & Council of Cedar Key, reported in 15 Fla., 306. Would this court have held that one residing upon an adjacent lot could have had no aid from a court to prevent the obstruction of the street until he had established a perfect legal title, good against all the world, to his residence? In this case, whether or not Moreno may eventually defend his right to the soil upon which his wood yard is situate, as against all the world, he is in the quiet and undisturbed possession and use of the same, and his possession and use are being irreparably and specially injured by the public nuisance complained of; and he has the same right to the court's aid to protect his possession and use against an acknowledged public nuisance as to protect his title in the event he establishes his title to all the water front in the suit at law pending. Sullivan v. Moreno-Argument of Counsel. In granting temporary injunctions the court in no manner is called upon to anticipate the ultimate determination of rights involved; its purpose is to preserve the property or rights in statu quo, until a satisfactory hearing upon the merits, without expressing and indeed without having the means of forming an opinion as to such rights, and in order to sustain such an injunction for the protection of property or rights, pendente lite, it is not necessary to decide in favor of complainant upon the merits, nor is it necessary that he should present such a case as will certainly entitle him to a decree upon the final hearing. High on Injunctions, p. 6, 85. The granting of a temporary injunction is a matter peculiarly within the discretion of the court upon a consideration of all the circumstances. And when granted upon a proper bill, duly sworn, the Appellate Court will in every case be slow to hold that such discretion has been wrongfuly exercised, especially when, as in this case, the Judge who has granted the temporary injunction, has by the bill been invited to view the premises and is presumed to be more familiar with all the circumstances than can be a court far removed from the locality. and consequently less familiar with the circumstances that have induced the granting of the preservative writ. It seems clear that however this case may be viewed, the action of the Circuit Court must be affirmed. The thing restrained is a public nuisance. As such it peculiarly and especially affects Moreno, whether it be considered as an injury to the estate, the title to which is now being litigated in the Circuit Court, and in that view the rights of the parties are properly preserved in statu quo, until trial of that right; or whether it be considered as enly affecting and injuring his possession and use of the premises which he occupies, to which no one claims any title as against him. Sullivan v. Moreno-Argument of Counsel. It seems, even if it were necessary that Moreno's title to the soil, upon which his wood yard is situated, should be established beyond controversy, it could not be done except by the suit at law pending, could not be done by the Equity Court; consequently it would be proper for the Equity Court to use its power to preserve the respective rights of the parties until the termination of the suit at law. And if the title was involved and could be determined by the Court of Equity, the exhibit filed by the defendant would have but little weight in the mind of a court to controvert Moreno's sworn allegation of ownership. His title might well emanate from other sources than from the maker of that deed; might result from long possession; and would not necessarily be restricted by the description of any one deed to him, or by what may once have been a passage-way or street, but by long non-user may have been closed, or by changes from accretion or avulsion may have been carried far inland or seaward from its original location. These are matters peculiarly within the knowledge of Judge, who has spent the greater part of his life in view of the premises, and, in view of all the circumstances, exercised his discretion in granting the temporary injunction to preserve all rights in statu quo. These, however, are questions not involved in this proceeding, though they, or some of them, may figure in the suit at law between these parties. "Treating the power of granting interlocutory injunctions, as resting in a sound judicial discretion, the courts of appellate jurisdiction are averse to any interference with the exercise of that discretion. And to such an extent is this aversion manifest that it may be stated as a general rule prevailing in States where appeals are allowed from orders granting or refusing injunctions in limine, that the appellate or reviewing tribunal will not interfere with or Sullivan v. Moreno-Argument of Counsel. control the action of the court below in such matters, unless it has been guilty of a clear abuse of that direction; and by abuse of discretion, within the meaning of the rule, is meant an error in law committed by the court. Unless, therefore, some established rule of law or principle of equity has been violated, the action of the court below will not be interfered with upon such an appeal. "Nor will the Appellate Court, upon such an appeal, ordinarily revise or control the discretion of the court below, upon questions of conflicting evidence, when, after hearing such evidence, that court has granted or refused a preliminary injunction." 2 High on Injunctions, §1696, and authorities cited in notes; among other cases Patterson vs. Board of Supervisors, 50 Cal., 344; Moses vs. Flewellen, 42 Ga., 386; Bonaud vs. Genese, ib., 639; Smith vs. Maganrich, 44 Ga.; 163; Oberholen vs. Greenfield, 47 Ga., 530. The court below having so exercised its discretion as to properly preserve the rights of all parties concerned, and agreeably to law in such cases as laid down by this court, the action of the court below should be affirmed with costs. J. P. Jones on same side. I. When it appears that a person will sustain any special or peculiar damage in consequence of the obstruction of a public highway, an injunction to restrain such obstruction will be granted at his suit. (Dawson vs. The St. Paul Fire In. Co., 15 Minn., 136.) The bill alleges special and peculiar damage to appellee, Moreno, and is not denied by answer, but sought to be avoided by ignoring Moreno's possession and disputing his title. See bill and answer. 2. In Glascott vs. Lang, 3 Myl. & Cr., 455, Lord Cottenham says: "In looking through the pleadings and evidence for the purpose of an injunction, it is not necessary that the court should find a case which would entitle the plain |