80 W. Va. 486 | W. Va. | 1917
This bill was filed in the Circuit Court of Harrison County to enjoin the defendant from'laying its pipe line in a certain public highway of said county. The plaintiff, the County Court of Harrison County, claims the right to enjoin the defendant from laying this pipe line upon the ground that said defendant has never obtained authority or permission from it to use the highway for that purpose, and that to allow defendant to lay its pipe line in said highway without obtaining said permission would be a. conversion of the public road to the private use of the defendant. It sets up certain alleged franchises under which it says the defendant claims to be acting. It contends, however, that neither of these franchises grants the right to lay such a pipe line as is being laid by the defendant, the one franchise limiting the size of the pipe line to be laid thereunder to two inches in diameter, tvhile the pipe line which defendant proposes to lay is six
The plaintiffs, James William Johnson, Leonidas Rhodes, Charles 0. Keesy, Truman J. Coffman, Smith D. Williams and Lant Ross aver that they are each the owners of land abutting upon this highway in which the defendant proposes to lay this six inch pipe line; that they each occupy a residence situate on their properties at distances from the said highway varying from thirty feet to one hundred feet; that the laying of said pipe line in .said highway by the defendant will materially injure the said plaintiffs; that it will make the use of said highway so dangerous as to practically deprive the said'plaintiffs of the means of ingress and egress to and from their properties over the said public road; and that in addition to this it will damage their properties materially by reason of the liability of injury to persons occupying the same from explosions caused by the heavy pressure at which it is proposed to convey gas through said pipe line; and that these injuries are peculiar to them and accrue to them because of the fact that their properties are situated in such close proximity to the proposed location of said pipe line. The other plaintiff is the county road engineer of, said county, and it is not shown that he has any other interest in the cause except as county road engineer. The defendant demurred to the plaintiffs’ bill and amended and supplemental bill, and because of misjoinder of parties plaintiff the court below sustained the demurrer, and being of opinion that the bills could not be amended dismissed the same, and this-appeal is prosecuted by plaintiffs to reverse that decree.
The sole question presented for solution is, are the bills multifarious? Are there joined in these bills against the defendant separate causes of action? The answer to this question depends upon whether or not the cause of action set up by the individual owners of property adjacent to this road is so different from the cause of action set up by the county
In Story’s Equity Pleadings, at §283, it is said: However, although a bill is ordinarily open to objection for multifariousness, which contains two distinct subject-matters, wholly disconnected with each other; yet, if one of them be clearly without the jurisdiction of a court of equity for redress, it seems, that the court will treat the bill, as if it were single, and proceed with the other matter, over which it has jurisdiction, as if it constituted the sole object of the bill.” Railroad Co. v. Traction Co., 56 W. Va. 18.
It is therefore necessary to determine whether or not the allegations in the bill state a cause of action in the individual landowners cognizable in a court of equity, and also whether there is an equitable cause of action made by the averments of the bill on behalf of the plaintiff, the County Court of Harrison County; and if we find that there is an equitable cause of action in favor of each class of plaintiffs, the inquiry will further be, are these causes of action so separate and distinct in their nature, in the character of the defenses thereto, in the remedy to be applied, and in the relief to which the parties may be entitled, as to forbid joining them in a single bill against the defendant?
Individual property owners, or tax payers as such, however, would have no right to enjoin a nuisance committed in a public highway where the injury inflicted is common to all persons entitled to use said highway. Unlawful occupation of any portion of the highway in such a manner as to materially interfere with the access of an abutting owner to his property, or his easement of light and air from the highway, is an unwarranted invasion of his property rights and constitutes a private, as well as a public nuisance. If the injury done to the plaintiffs is peculiar to their property, such as to interfere with the ingress or egress in connection therewith, and this injury will continue if the nuisance sought to be enjoined is not abated, the property owners under such circumstances would have a right to enjoin the maintenance of such a nuisance. If, on the other hand, the injury done to the plaintiffs can be easily compensated in damages and is of a like character to that inflicted on all other persons having a right to use the road in common with the plaintiffs, their, action would be at law to recover damages and not in equity to enjoin the nuisance. Davis v. Spragg, 72 W. Va. 672; Keystone Bridge Co. v. Summers, 13 W. Va. 476. The allegations of the bills in this case are sufficient to show that the injury which the plaintiffs will suffer from the construetion of this pipe line is a peculiar injury. The charge in their bills is in effect that if the pipe line is allowed to be laid through this highway in front of their properties, their dwellings will be constantly menaced by danger from the pipe bursting under the high pressure to be maintained in it, and they aver that this is a frequent occurrence with pipes of
This being true, is the cause of action set up and relied upon by the plaintiff, the County Court of Harrison County, such an one as can be united in a suit 'with the cause of action set up and relied upon by the individual property owners'? It may be said that where different parties have a common cause of action against a single defendant, even though their relations thereto may not be exactly the same, if the defense to each of said causes of action is of the same general nature, or is based upon the same facts, and the relief to be granted is the same in its practical effect, then such plaintiffs can unite in one suit to enforce their rights against the defendant. If, on the other hand, it appears that the defense to the causes of action is separate and distinct, and the relief to be granted to one plaintiff, or class of plaintiffs, is different in kind or degree from that to be granted to the other, ordinarily they will not be allowed to. join in a single suit against the common defendant. In such ease, as stated by Story in his Equity Pleadings, §271, "the defendant would be compelled to unite in his answer and defense different matters wholly unconnected with each other, and thus the proofs applicable
To entitle the plaintiffs to join in a common action against •a defendant their cause of action must be the same, the injury the same, and they mupt be entitled to the same remedy. Beach Modern Equity Practice, §119; 16 Cyc. 204; Dennis v. Justus, 115 Va. 512; Cecil v. Karnes, 61 W. Va. 543; Zell Guano Co. v. Heatherly, 38 W. Va. 409; Walker v. Powers, 104 U. S. 245; Plum v. Canal & Banking Co., 10 N. J. Eq. 256.
Applying the rule laid down by these authorities we find that in order to meet the allegations of the bill, so far as they are made on behalf of the county court, it would involve sustaining the validity of certain franchises under which it is alleged the defendant proposes to act. This defense would not in any wise affect the rights of the individual plaintiffs. To meet the allegations of the bill, so far as they justify the granting of relief to the individual landowners, it would be necessary for the defendant to overcome any proof that might be offered to show the peculiar injury to the property of these plaintiffs. This defense would be entirely disassociated with the defense to be made to the bill by the County Court of Harrison County. In fact, the allegations of the-bill disclose that the defense to the cause of action set up by the individual owners of real estate along this road is separate and distinct from and in no way connected with the defense to the cause of action set up by the County Court of Harrison County.
Further than this, the extent of the relief to be granted, should the plaintiffs prevail, might, and in all probability would be different in each case. The individual property owners may be entitled under the showing which they are able to make to have the defendant enjoined from laying a pipe line of such character- as would inflict upon them the injuries of which they complain, while the County Court of Harrison County, if its contentions are sustained, may be entitled to have the defendant enjoined from laying a pipe
Upon this showing the circuit court did not err in holding that there was a misjoinder of plaintiffs, and in dismissing the bill.
The decree complained of is therefore affirmed.
Affirmed.