Chesapeake & Ohio Railroad v. Patton

5 W. Va. 234 | W. Va. | 1872

Maxwell, J.

This was an injunction to restrain the Chesapeake and Ohio Railroad Company and others, from using or operating certain telegraph wires placed upon the land of the plaintiff bjr the said defendant, and also to restrain the same parties from doing any work of any kind whatever, towards the construction of the Chesapeake and Ohio railroad on the said premises.

It is claimed, first, that it was error to grant the injunction because the bill was not sworn to before an officer authorized to administer an oath. The bill was sworn to before John Slack, clerk of the circuit court of Kanawha county, and the order awarding the injunction was addressed to the clerk of the circuit court of Fayette county, to operate in the last named county. By the sixth section of chapter 117 of the Code, p. 585, it is provided that, “A clerk of a court or his deputy may administer an oath in any case wherein an affidavit is necessary or proper.”

But the counsel for the appellant say that this section does ot give to the clerk authority to administer the oath in this case, and cites Williamson’s case, 4 Gratt., 554, where it was held that the authority of a clerk to administer an oath out of court only extends to cases in which, without regard to circumstances, the making the affidavit is a necessary prerequisite to the performance of the official act which the clerk is called upon to perform. The law in force at the time that decision was made, provided that, “The several clerks of courts of this commonwealth, and their deputies, shall be empowered to administer oaths in all cases wherein an affidavit is necessary as the foundation of any official act to be performed by such clerk,” which was a wholly different provision from the present law, and the decision under it could not have been different from what it was. The authority of clerks to administer oaths must be held, under the present law, to extend to all cases wherein an affidavit is necessary, and therefore the affidavit in this case is made before an officer authorized to administer oaths.

The next assignment is, that it was error in the clerk to issue the writ with an endorsement until the injunction bond was approved by the clerk of the circuit court of Fayette county.

The injunction should not take effect until the bond is given, but if by accident it is made to tak'e effect before, this is not sufficient error to warrant this court in reversing the order granting the injunction. The party ought to be allowed a reasonable time after his attention is called to the defect in the bond, by rule or notice, in which to execute a proper bond, and on his failure to do so the injunction ought to be dismissed. Hilliard on Injunctions, p. 69; Ghiselin vs. Ghiselin, 5 Gill’s Rep., 138; Guerry vs. Durham, 11 Georgia Rep., 9.

The third assignment is, that there are fatal defects in the bill itself, for which the injunction should ■ not have been granted.

The bill, after describing the plaintiff’s land, charges that the Chesapeake and Ohio railroad, an incorporated company for purposes of public utility and internal improvement, have, without the consent of the plaintiff or any authority whatever, but after written notice not to do so, entered upon, took possession, and have erected upon the said land telegraph poles with wires to the same; have removed or destroyed the fencing around the same. That they have entered upon the same, or are about to enter upon the same, for the purpose of excavating by digging and other means, a double track railroad for the use of the Chesapeake and Ohio railroad, through the same, to the great and irreparable damage to the plaintiff, of the same, and which is contrary to law, and is in ■palpable violation of the rights of the plaintiff as owner of the same. That the said Chesapeake and Ohio railroad have, in so doing, acted without the authority of law in failing to pursue the course provided by law, as authorized by chapter 42, pages 260 and 266 of the Code of West Virginia, for all of which unlawful and oppressive acts the plaintiff has sustained great damage, and will sustain greater damage and injury by the prosecution of the work aforesaid.

The bill is indefinite and uncertain in some of its material .allegations. It charges that the Chesapeake and Ohio railroad (not railroad company) have without any authority entered upon, took possession and have erected upon the said land telegraph poles, &c. That they have entered upon the same, or are about to enter upon the same, for the purpose of excavating by digging and other means a double track railroad through the same, to the great and irreparable damage to the plaintiff of same, and which is contrary to law, &c. That the said Chesapeake and Ohio railroad (not railroad company) have, in so doing, acted without the authority of law in failing to pursue the course.provided bylaw, &c. Tbe allegations in the bill are against the Chesapeake and Ohio railroad, and not against the Chesapeake and Ohio Railroad Company; but as the counsel for the company make no point on this defect, the effect of it will not be considered. So far as the bill charges the Chesapeake and Ohio Railroad Company with any act or acts, it charges that it entered upon and took possession of the plaintiff’s land, and erected thereon telegraph poles, &c., without any authority. But the charge that the railroad “ have entered upon the same, or are-about to enter upon the same,” is too uncertain when taken in connection with the charge in the bill, that the company has acted without the authority of law, and in the absence of any averment or charge in the bill that it is about to act further without authority of law. An injunction should not be granted for an act done and comjdeted, though contrary to law, unless under peculiar circumstances. There is not in the bill any averment that the company, at the time the bill was filed, was transcending its authority, or was about to do so, or that said company was insolvent, or that it was doing, or about to do, any injury to the property of the plaintiff which could not be adequately compensated in damages. The order granting the injunction will therefore have to be reversed with costs to the appellant, and the bill dismissed.

The other judges concurred.

Order reversed and bill dismissed.