47 W. Va. 725 | W. Va. | 1900
The Glen Jean, Lower Loup and Deepwater Railroad Company filed its declaration in trespass on the case in the circuit court of Fayette County against the Kanawha, Glen Jean and Eastern Railroad Company, which demurred thereto. The demurrer was sustained, and, plaintiff refusing to amend, the suit was dismissed, and this writ of error followed.
The declaration contains five counts.' The first, second, and fifth are for damages sustained by reason of the suing out of an injunction which was afterwards dissolved. They fail to charge that the injunction was sued out maliciously .or without probable cause. This is a fatal defect. The authorities relied on by plaintiff’s counsel are all ag-ainst him. They are unanimous in holding that no ac
The fourth count does not even charge a legal trespass. It avers that the plaintiff hada right of way (describing it), and proceeds: “And plaintiff having said right of way and being possessed thereof, and then and there having the saíne graded by sundry laborers, and being so possessed thereof, the defendant, for the purpose of injuring the plaintiff, and harrassing it, took possession of said land and right of way, and forbade the said laborers to work on and grade the same, and held possession thereof from the 28th day of April, 1897, until the 22d day of April, 1898.” There is no allegation that the defendant entered and took possession either wrongfully or unlawfully. The defendant’s entry may have therefore been both rightful and lawful, although the plaintiff may have been harrassed and injured thereby. A tenant at will, it matters not that he is in possession of the tenement lawfully, majr be dispossessed by his landlord entering and taking possession; and although such tenant may consider himself harrassed and
The third count is as follows, to wit: “ (3) And whereas the said plaintiff before and at the time of committing the grievances hereinafter enumerated had been and was lawfully possessed of a certain tract of land, containing nine acres, situated and being in the county of Fayette, and between the Loup Creek Branch of the Chesapeake and Ohio Railway and the property line of the real estate of N. M. Jenkins and T. C. McKell, and on Upper Loup Creek and Whiteoak Branch, in the county aforesaid, and by reason thereof the plaintiff had the right to the possession and use thereof, and to occupy and work on said land, but the said defendant, well knowing the premises, but wrongfully and unjustly intending to injure the plaintiff in that behalf, and deprive it of the use and benefit of said land, whilst the plaintiff was so possessed of said land, to wit, on the 28th day of April, 1897, and on divers other days and times between that day and the 22d day of April, 1898, at the county aforesaid, wrongfully and injuriously seized upon and took possession of said land, and forcibly ejected the plaintiff from said land, and prevented it from working on said land as of right it might have done, and held and kept possession of said land from the said 28th of April, 1897, until the 22d day of April, 1898, and plaintiff was deprived of the use of said land for the period aforesaid, at the county aforesaid, and it was thereby injured and damaged in the sum of twenty thousand dollars.” There is only one objection made to this count, and that is an insufficient description of the place of the trespass. In all other respects the count appears sufficient, as it charges the trespass to have been wrongful, which is equivalent to unlawful. The defendant’s counsel rely on the case of McDodrill v. Lumber Co., 40 W. Va. 564, (21 S. E. 878), to sustain their contention as to the sufficiency of the locus in quo. In that case it was held that “the place where the acts complained of were done is material and traversable, and the allegations there
Reversed in fart.