what the facts were, and inquiry by him developed the fact that an agreement had been reached, although perhaps not executed, by the parties with the Southern Railway Company. I then addressed a letter to President Smith, setting out the facts, and received telegraphic authority to proceed.

The Mr. Gaut referred to above had, on some former occasions, endeavored to bring about an agreement between the appellant railroad and these industries. In a brief affidavit Mr. Gaut says that on July 1, 1903, Mr. Ellis called on him "to ascertain whether the newspaper reports that a contract had been signed between these companies and the Southern Railway Company were correct or not. I made inquiries concerning the matter at once, and learned that, while the conveyances for right of way had not been executed, the agreements had been reached whereby they were to be executed." After receiving authority to construct a spur according to this survey, and without further effort to come to any agreement with the enterprises to be served, and wholly independent of any assistance from or agreement with the parties desiring the spur, the appellant company, on the night of July 2, 1903, began operations to secure priority of right over the Luttrell property, knowing at the time that at least a parol agreement had been already concluded by the defendant company for the rights of way essential to the construction of a spur over the same route. The supposition that possibly the right of way over Luttrell's land had not been conveyed by an instrument in writing proved to be erroneous, for the evidence tends to show quite satisfactorily that on June 30th Mr. Luttrell executed and delivered his deed, though it was not placed on record until July 3d.

To secure priority of right over the Luttrell land, notwithstanding the situation as confessedly known, and to obtain what advantage there might be, in view of the possibility that deeds for the right of way had not been executed, the complainant company, on the night of July 2d, filed a petition in the state circuit court for Knox county, Tenn., against S. B. Luttrell, seeking to condemn the right of way now involved, and being the same previously conveyed by the unrecorded deed of the owner. On the same night, and before service of process or notice or knowledge of either Luttrell or the Southern Railway Company, civil engineer in appellant's service, with a small force, went upon the proposed right of way for the alleged purpose of taking possession and beginning the construction of the proposed track. Knowledge of this latter step was obtained by the Southern Railway Company, and very early in the morning of the 3d of July it also sent a force of men upon the Luttrell property, and began at once the construction of a track, claiming a right to do so under Luttrell's grant and conveyance. the same morning, and after this movement in the interest of the Southern Railway Company, the appellant company filed the present bill in the Chancery Court of the state, and obtained an ex parte injunction restraining the defendant company from interfering with its alleged prior right and prior possession. Upon the same day, but at a later hour, the defendant filed a similar bill in the same court, and was also granted an ex parte injunction. Thus both companies were forbidden to proceed with the construction of the said spur across the land of said Luttrell until the court should determine which had the better right. Answers were at once filed to each bill, and ex parte affidavits taken

and filed, under consent and agreement, to be used upon motions to dissolve the injunctions granted. The two cases, on July 11, 1903, were heard at the same time, upon motions to dissolve. The chancellor denied the motion to dissolve the injunction granted under the bill of appellant, and sustained the motion to dissolve the injunction granted under the bill filed by the appellee company. On August 1st the Southern Railway Company dismissed its said bill without prejudice, and removed the case of the appellant company into the court below. A motion to remand to the state court was seasonably made by the appellant company, and denied. The defendant, under leave, filed a cross-bill, seeking affirmative relief against the occupation of the right of way in question by the Atlanta, Knoxville & Northern Railway Company, and asserted its own exclusive rights under the deed of Luttrell. Subsequently the cause was heard upon a motion to dissolve the preliminary injunction granted by the state chancellor, and to allow a pendente litem injunction under the cross-bill. Both these motions were granted, and from the order allowing an injunction upon the said cross-bill this appeal has been taken.

1. It is first insisted that, although this suit was one which might have been removed by the Southern Railway Company into the circuit court, the right to remove was waived by the proceedings which occurred in the state court before the petition to remove was filed. The question is one which goes, in a sense, to the jurisdiction of the court below, and, although this is only an appeal from an interlocutory injunction, should be decided before considering the merits. Bissell Co. v. Goshen Co., 19 C. C. A. 25, 72 Fed. 545; Smith v. Vulcan Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. Ed. 810; In re Tampa R. Co., 168 U. S. 583, 18 Sup. Ct. 177, 42 L. Ed. 589. The provision of Act March 3, 1887, c. 373, § 1, 24 Stat. 552 [U. S. Comp. St. 1901, p. 510], as amended by Act Aug. 13, 1888, c. 866, § 3, 25 Stat. 433 [U. S. Comp. St. 1901, p. 510], in respect to the time for the removal of a cause, is that the party entitled to remove shall file his petition in such suit in the state court "at the time, or any time before, the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff." This means that a petition for removal must be filed as soon as the defendant is called upon by the local law to make any defense, either to the jurisdiction or merits. Martin v. B. & O. R. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. But under the state law the earliest day at which the Southern Railway Company was obliged to make any. defense whatever to the bill of the Atlanta, Knoxville & Northern Railroad Company was upon the first rule day in August, which was Monday, August 3d. The petition to remove was filed August 1st. It therefore follows that the petition for removal was filed within the time required by law. But it is said that, although the petition was filed before any defense was due, and therefore within time, the right to remove had been waived by the filing of an answer and by the hearing had in the state court upon the question of the dissolution of the ex parte preliminary injunction granted upon the filing of the bill. The citizenship of the parties was such as to bring the case within the constitutional jurisdiction of a United States court. The time of removal

was not of the essence, and any objection for failure to remove within the time required by the statute must be made promptly, or the right to object for that reason is lost. Newman v. Schwerin, 61 Fed. 865, 10 C. C. A. 129; Martin v. B. & O. R. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311. Upon the same line of reasoning a defendant should not be deprived of his constitutional and statutory right to a trial in a court of the United States upon the ground of waiver unless a clear case of intent to submit and have a hearing in the state court is made to appear. The mere filing of any answer or plea or any other defense before it is due under the law or rule of the state court is not inconsistent with the subsequent removal of the case. The premature filing of a defense is in no sense a trial or hearing, and is not conduct establishing a waiver of the right to remove. The statute does not require the petition to be filed before any defense is filed, but only before the time when the first defense is required to be filed. Gavin v. Vance (C. C.) 33 Fed. 84; Conner v. Coal Co. (C. C.) 45 Fed. 802; Duncan v. Associated Press (C. C.) 81 Fed. 417-422; Champlain Const. Co. v. O'Brien (C. C.) 104 Fed. 930.

This brings us to the question as to whether the hearing in the state court upon the motion to discharge the ex parte preliminary injunction should operate to defeat the right to remove, although the petition was filed within the time prescribed by the statute. In view of the fact that the law requires the petition to remove to be filed on or before the time when the first reading by the defendants may be required, it may be inferred that Congress did not intend to allow a removal after the trial of the case, or any question in the case, even though such trial should occur before the time when the first defense was due under the law. Under Act March 3, 1875, c. 137, § 3, 18 Stat. 470 [U. S. Comp. St. 1901, p. 510], which allowed a removal at or before the time at which the case could be first tried, "and before the trial," it was held that a hearing upon a demurrer was a trial of the action within the meaning of that act. Alley .v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491. In Removal Cases, 100 U. S. 457, 473, 25 L. Ed. 593, it was held that, if the trial had actually begun before the application to remove, the right of removal was gone, though there had been no judgment. The court in that case said that Congress did not intend by the expression "before trial" to allow a party to experiment on his case in the state court, and, if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal. If there was any hearing of the appellant's case, or if any hearing was begun, though no judgment had been rendered, before the filing of the petition to remove, the right to remove may well be regarded as waived, the hearing concluded or begun being inconsistent with the clear purpose of the act that the removal shall occur before any such experimenting with the state court. The question, then, to be decided is whether by the filing of an answer and by the hearing which did occur before the petition to remove was filed the right of removal was waived or lost. This hearing, which was had before the removal, was upon a motion to dissolve a preliminary injunction which had been granted without notice. In effect, it was neither more nor less than a motion for an injunction pendente lite, for the injunction allowed was without notice, and nothing more than a restrain

ing order to stand until there could be a hearing upon notice of the question of the allowance of an injunction to preserve the status until a final hearing. The question to be decided was whether there was a probable right which might be jeopardized unless an injunction should preserve the status until a final hearing. It is a question which largely appeals to the discretion of the chancellor, regulated by the balance of inconvenience or danger to the parties. Flippen v. Knaffle, 2 Tenn. Ch. 238; Blount v. Societe, etc., 53 Fed. 98, 3 C. C. A. 455, 457; Glascott v. Lang, 3 Mylne & C. 451, 455; Grt. Western Ry. Co. v. Birmingham & O. J. Ry. Co., 2 Phil. Ch. 602; Allison v. Corson, 88 Fed. 581, 32 C. C. A. 12.

In Blount v. Societe, etc., cited above, Jackson, Circuit Judge, speaking for this court, said:

"The object and purpose of a preliminary injunction is to preserve the exist ing state of things until the rights of the parties can be fairly and fully investigated and determined upon strictly legal proofs and according to the course and principles of courts of equity."

In Grt. Western R. Co. v. Birmingham R. Co., cited above, Lord Cottenham said:

"It is certain that the court will in many cases interfere and preserve property in statu quo during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming, any opinion as to such rights. It is true that the court will not so interfere if it thinks there is no real question between the parties; but, seeing that there is a substantial question to be decided, it will preserve the property until such question can be regularly disposed of. In order to support an injunction for such purpose, it is not necessary for the court to decide upon the merits."

Under the practice in the chancery courts of Tennessee, as stated by so eminent an equity judge as Chancellor Wm. F. Cooper, in Owen v. Brien, 2 Tenn. Ch. 295, the chancellor, though sitting in open court, will not ordinarily decide any matter upon its merits upon a motion to allow or dissolve a temporary injunction. But the hearing in this matter was. not in open court, but at chambers, and the chancellor has at chambers no power to decide any cause upon its merits, unless it be a hearing by consent of some of the matters provided for by the Tennessee act of 1903, p. 577, c. 248; Shannon's Tenn. Code, 6220, 6223. A motion to dissolve or allow a mere temporary injunction is a matter which could always be heard at chambers, and the jurisdiction of a Tennessee chancellor at chambers in respect of such motions is not enlarged or regulated by the act cited. The hearing in this cause could not have been a hearing upon the facts, for the motion was heard only upon the bill, answer, and ex parte affidavits. Such affidavits are not legal proofs, and are admissible only for the purpose of guiding the discretion of the chancellor in allowing or disallowing a preliminary injunction. That the learned chancellor expressed opinions which bore upon the merits is of no moment, for he could do no more, and was called upon to do no more, than decide whether, upon such a prima facie showing, the complainant had a probable right which should be preserved until a hearing upon legal proofs and according to due course of equity could be had. To that extent the hearing before him at chambers. went, and no further. The same motion might have been renewed.

again and again, for the matter was not concluded by the disallowance of the motion made. Having regard to the fact that the hearing had was before a judge in chambers having no jurisdiction to hear the cause upon the facts, and upon ex parte affidavits, we conclude that the refusal of the court to discontinue the pending preliminary injunction was not a hearing upon the merits, nor the trial of the suit upon any question affecting the merits, and therefore not such a hearing as will defeat the right of removal. The question presented by the facts stated has not been authoritatively decided by the Supreme Court nor any of the Circuit Courts of Appeal. The decisions in the Circuit Courts are not altogether harmonious, but the decided weight of authority lends support to the conclusion we have reached. Gavin v. Vance (C. C.) 33 Fed. 84; Freeman v. Butler (C. C.) 39 Fed. 1; Garrard v. Silver Peak Mines Co. (C. C.) 76 Fed. 1; Duncan v. Associated Press (C. C.) 81 Fed. 417-422; Purdy v. Wallace Muller Co. (C. C.) 81 Fed. 513; Whitley v. Malleable Castings Co. (C. C.) 83 Fed. 853; Champlain Con. Co. v. O'Brien (C. C.) 104 Fed. 930; Sidway v. Missouri Land Co. (C. C.) 116 Fed. 382.

2. Did the district court abuse its discretion in denying a preliminary injunction to the Atlanta, Knoxville & Northern Railroad Company and awarding one to the Southern Railway Company upon its cross-bill? The contention is that the appellant, the Atlanta, Knoxville & Northern Railroad Company, acquired a priority of right to an easement of way across the land of said Luttrell by reason of the filing of its petition for a condemnation before the deed of Luttrell was put to record. It is true that the learned counsel have also laid some stress upon an alleged prior survey and location. But, as already indicated, we do not find, upon the present state of the record, that this claim is substantiated. Preliminary surveys were made by both companies, and it may be that the first preliminary reconnaissance was made by the appellant company. But the weight of evidence is that the Southern Railway Company completed its survey and location first, and first definitely determined upon the construction of the spur in question. It was only after the appellant company learned, through the press and by reports, that the Southern Railway Company had concluded an agreement with the establishments to be reached by the proposed spur that the complainant company definitely determined to build a spur, regardless of any agreement with the people with whom it had been negotiating. Neither do we attach any importance to the fact that on the night of July 2d, and after the filing of the condemnation proceedings, the appellant company placed a force of men at work upon the disputed premises. This it did without the consent or knowledge of either Mr. Luttrell or the Southern Railway Company, and without the slightest semblance of legal authority or moral right. The mere fact that it had theretofore surveyed a line across Mr. Luttrell's property, and had started condemnation proceedings, gave it no right to take possession without the consent of the owner, and in advance of a condemnation. The Tennessee statute regulating the taking of private property for public uses does not authorize an occupation before an assessment of damages, and no court of equity can afford to regard a bold act of trespass as a sound foundation for an equitable priority of right.