to his rights. On the other hand, such remedy, in a case like the present, might result to the wrongdoer in something nearly akin to persecution. He is liable to be sued every day, die de diem, for the renewed damages flowing from the continuance of the trespass, and, while ordinarily there is no sympathy to be wasted on a trespasser, yet such multiplicity of suits should be avoided, and especially under circumstances like those before us. The rocks could not be immediately removed. The court have observed that peculiarity of the case and shaped their judgment to give time. It may take a long time, and, during the whole of it, the defendant would be liable to daily actions. For reasons of this character it has very often been held that while, ordinarily, courts of equity will not wield their power merely to redress a trespass, yet they will interfere under peculiar circumstances, and have often done so where the trespass was a continuing one, and a multiplicity of suits at law was involved in the legal remedy."

Upon revocation of a parol license to maintain a dam on plaintiff's land, plaintiff is not confined to his remedy at law, but is entitled not only to the abatement of the nuisance, but to a perpetual injunction to prevent its renewal, and thereby to suppress multiplicity of suits and oppressive litigation, especially where defendants have undertaken to maintain their supposed right by force, whereby plaintiff has been for a long time disturbed in the enjoyment of his just right of property. Stevens v. Stevens (1846) 11 Met. (Mass.) 251, 45 Am. Dec. 203.

In Lemley v. Jones (1918) 104 Wash. 105, 176 Pac. 4, where there was a natural barrier upon defendant's land which checked the flow on to plaintiff's land of a series of small connected lakes, except during the spring season when the water was high, it was held that defendant would be restrained from lowering the natural barrier, resulting in the water flowing upon plaintiff's land, though a

license to do so may have been given by plaintiff, the same being revocable.

The reported case (LIBBEY V. VAN BRUGGEN, ante, 1134), it is to be noted, holds that injunction is a proper remedy by a licensor to prevent a licensee from further use of an irrigation ditch across licensor's land, which license has been revoked for violation of the conditions of the license.

In Hoye v. Sweetman (1887) 19 Nev. 376, 12 Pac. 504, where defendant entered upon plaintiff's land and commenced the construction of a small irrigating ditch, before completion of which plaintiff denied defendant's right and revoked all further authority or license,-the ditch being completed before commencement of the suit, however, it was held that an injunction to restrain defendant from maintaining the ditch was properly refused, where the land over which the ditch was constructed was uninclosed, wild, unproductive, and of no value to the owner, so that damages were merely nominal, no real injury being done the land, and where defendant was solvent and able to respond in damages, the view of the court being that plaintiff's remedy at law was adequate and ample.

See Girard v. Lehigh Stone Co. (1917) 280 III. 479, 117 N. E. 698, a suit by one who had given permission to a stone company to pump water from its quarry on to the lands of plaintiff, to enjoin further draining of such water upon his land; the court denied the right of plaintiff to an injunction, giving as one reason the fact that no substantial injury to the land had been shown.

Upon revocation of a license to defendants to establish a connection with a water main, there is no necessity for an injunction against them, where they disclaim any intention to re-establish the connection. Oelbaum v. Winer (1913) 81 Misc. 357, 141 N. Y. Supp. 1076, affirmed in (1913) 160 App. Div. 878, 144 N. Y. Supp. 1133. L. S. E.

Jurisdiction of suits between states is not affected by the 11th Amendment to the Constitution of the United States

Cohen v. Virginia, 6 Wheat. 264, 5 L. ed. 257; Virginia v. West Virginia, 206 U. S. 290, 51 L. ed. 1068, 27 Sup. Ct. Rep. 732; South Dakota v. North Carolina, 192 U. S. 286, 48 L. ed. 448, 24 Sup. Ct. Rep. 269.

The operation of the said State Belt Railroad was and is by the state of California, through its political agency or arm, the board of state harbor commissioners, and was and is not in interstate commerce.

Kentucky v. Dennison, 24 How. 66, 16 L. ed. 717; Sundry African Slaves v. Madrazo, 1 Pet. 110, 7 L. ed. 73; Coe v. Errol, 116 U. S. 517, 29 L. ed. 715, 6 Sup. Ct. Rep. 475; Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403, 51 L. ed. 540, 27 Sup. Ct. Rep. 360; Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 27 L.R.A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 567; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; United States v. Trans-Missouri Freight Co. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540; Texas & P. R. Co. v. Henson, 56 Tex. Civ. App. 468, 121 S. W. 1127, reversed in 103 Tex. 598, 132 S. W. 118; United States v. Erie R. Co. 237 U. S. 402, 59 L. ed. 1021, 35 Sup. Ct. Rep. 621; Whalley v. Philadelphia & R. R. Co. 248 Pa. 298, 93 Atl. 1016, writ of error dismissed in 241 U. S. 689, 60 L. ed. 1237, 36 Sup. Ct. Rep. 549; Farrell v. Pennsylvania R. Co. 87 N. J. L. 78, 93 Atl. 682; Worley v. Southern R. Co. 169 N. C. 105, 85 S. E. 397; United States v. Chicago, B. & Q. R. Co. 237 U. S. 410, 59 L. ed. 1023, 35 Sup. Ct. Rep. 634, 127 C. C. A. 438, 211 Fed. 12; United States v. New York C. & H. R. R. Co. 205 Fed. 428.

Messrs. J. T. Williams, Thomas J. Sheridan, and M. C. List for the United States.

Gilbert, Circuit Judge, delivered the opinion of the court:

The United States, at the request of the Interstate Commerce Commission, brought an action to recover from the defendants, the board of state harbor commissioners of the state of California, penalties

alleged to have been incurred by them for violations of the Federal Safety Appliance Act of March 2, 1893, 27 Stat. at L. 531, chap. 196 Stat. Anno. 2d ed. p. 1155), and the (Comp. Stat. §§ 8605-8612, 8 Fed. amendments thereto, committed in the operation of the State Belt Railroad, a railroad traversing the San Francisco harbor front and belonging to the state. The defendants answered, denying the jurisdiction, in that the suit was in fact brought against the state of California and a political and governmental agency of the state. The answer also denied that the board was a common carrier, or engaged in interstate commerce by railroad, and upon information and belief it denied the alleged violations of the Safety Appliance Act. Upon the trial a verdict was rendered for the plaintiff, and judgment was thereon rendered for the plaintiff in the sum of $200.

We think that the court below properly held that the action was not an action against the state, and that the court's jurisdiction thereof was not forbidden by the 11th Amendment to the Constitution. It is conceded that the board is an agency of the state, and that, as such, it conducts the business of the state on the water front and manages the State Belt Railroad. But this is not a case in which the members of the board were acting within the power and duty vested in them by law, or in pursuance of authorization from the state. It is an action in tort to recover penalties for against state wrongful acts committed in violation of a law of the United States, not by the state, but by individuals acting as its servants. The state could not and did not authorize the commission of such wrongful acts, and immunity of the state from suit does not relieve state officers from responsibility for their unlawful action. In Hopkins v. Clemson Agri. College, 221 U. S. 636, 55 L. ed. 890, 35 L.R.A. (N.S.) 243, 31 Sup. Ct. Rep. 654, the court declared immunity

States-action

board.

the term 'common carrier' for all purposes. Nor are we concerned with questions of corporate power or of duties to shippers, which frequently compel nice distinctions between public and private carriers. We have merely to determine whether Congress, in declaring the Hours of Service Act applicable 'to any common carrier or carriers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad,' made its prohibitions applicable to the Terminal and its employees engaged in the operations here involved. The answer to that question does not depend upon whether its charter declares it to be a common carrier, nor upon whether the state of incorporation considers it such; but upon what it does."

The court, after referring to the fact that the services rendered by the Terminal were public in their nature, and of a kind ordinarily performed by a common carrier, proceeded to say: "If these terminal operations were conducted directly by any, or jointly by all, of the ten railroad companies with which the Terminal has contracts, the operations would clearly be within the scope of the Hours of Service Law."

A similar case is Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 60 L. ed. 984, P.U.R.1916D, 972, 36 Sup. Ct. Rep. 583, Ann. Cas. 1916D, 765.

Not only is the board a common carrier, but we think that the line of the State Belt Railroad is a highway of commerce. It receives from other railroads loaded cars containing freight shipped in interstate commerce, and delivers them either to the industries which it serves or to wharves for further transportation, and likewise it receives freight from the wharves and from the in

dustries, and carries it on its road,

and delivers it to the transcontinental roads which it serves, and for all of which services it receives compensation. At times, as the evidence shows, it is a line of road for the

continuous shipment of freight through the state of California.

The defendants rely upon Kentucky & I. Bridge Co. v. Louisville & N. R. Co. (C. C.) 2 L.R.A. 289, 2 Inters. Com. Rep. 251, 37 Fed. 567, in which it was held that a bridge company, which owned a bridge, and, while owing no legal obligation to do so, voluntarily contracted to switch cars over its tracks between two or more railways, and collected switching charges merely for shifting cars from one line to another, was not a common carrier within the true meaning of § 1 of the Act to Regulate Commerce (Comp. Stat.

8563, 4 Fed. Stat. Anno. 2d ed. p. 337), so that it could compel railroad companies to interchange traffic with it. What was there said as to the character of the bridge company was obiter, for the court had found that there was a want of physical connection at suitable and properly equipped stations to invoke the requirement of an equal facility for exchange of traffic, and in view of that finding it could make no difference whether or not the petitioner in the case was a common carrier. But there is this to be said by way of distinguishing that case from the case at bar. In that case the bridge company lacked one of the essentials of a common carrier.

It did not undertake to carry for all indifferently. all indifferently. 4 R. C. L. 546. The defendants in the present case undertake for hire to transport the cars of all who choose to employ them. They are operating a public terminal, and it is well settled that terminal companies are common carriers whenever

state belt line

they hold them- Commercethey selves out to be as carrier such, and constantly Appliance Act. within Safety act in that capacity,

and are so dealt with by railroad spective of the manner in which companies generally, and this irrethey receive their compensation. United States v. Union Stock Yards Co. 226 U. S. 286, 57 L. ed. 226, 33 Sup. Ct. Rep. 83. In United States v. Sioux City Stock Yards Co.