44 W. Va. 466 | W. Va. | 1898
Luther J. Lazzell filed his bill in the circuit court of Monongalia county, at October rules, 1892, against J. Marion Garlow, alleging the possession of one hundred and forty-three acres of land, conveyed to him by three different deeds, and filing such deeds as exhibits with such bills, claiming that he had an indisputable title to said one hundred aud forty-three acres of land, and that, being so possessed in fee, the defendant committed trespasses thereon, by tearing down and destroying his fencing, and with horses and heavy timber wagons, driving over his land, and hauling heavy timbers through and over it, greatly to his damage, and notwithstanding'he gave defendant written notice not to so trespass, he continued such trespassing, tearing down his fencing as often as plaintiff built it up; that he brought several actions of trespass to recover damages, but defendant did not cease to trespass, damage, and harass the plaintiff, and to break down, tear to pieces, and destroy his fences and to haul through his land; that he threw plaintiff’s land open to the commons, and stock run
That plaintiff knew at that time, and has known all his life, that the place where respondent, or those engaged in hauling out timber from respondent’s land, adjoining the lands of the plaintiff, referred to in the bill, passed over the lands of the plaintiff, or laid down or opened hi§ fence, was on, over, and along a public big road,
Depositions of various witnesses were taken by both parties, and filed in the cause, from which, as well as from the documentary evidence, it is clear that an old public road running from the Pennsylvania state line, by way of the Pickenpaugh place, and thence, through and along by the lands of various parties, including appellant, appellee, Simpkins, Conaway, and others, to Craft’s run, and onto Morgantown, had been in use from time immemorial, and worked and kept up as a public road; that some of the deeds exhibited by the plaintiff himself with his bill recognized the same as a public road. While appellee raises some question about the formal or legal establishment of this road, as no record of it can be found, which is probably sufficiently explained by the fact that the court house and records of the county were once destroyed by fire, yet it is hardly seriously contended that it was not once a public road, having been worked by the authorities and treated as such for sixty years and more, within the memory of some of the witnesses examined in the cause. It seems that the distance from the state line to the old Pickenpaugh house is about one-quarter of a mile, and from said house to Craft’s run, beyond which there is no dispute, is about a mile, or a little over. In addition to the
Levi Fortney testified that he was seventy-eight years old; had been acquainted with that road for sixty years or upwards; that he had worked on that road, and had traveled it, more than sixty years; that about 1872 to 1876 he lived on the Bodley land, now owned by defendant; that while he lived there the road running from said Bodley land, between the lands owned by Conaway and Simpkins, on the one side, and James Lazzell, on the other, was the only outlet to Maidsville or Morgantown that he (Simpkins) and Conaway or Davis had; that while he lived there F. R. Sinclair was an overseer of the county roads in that district, and he heard Sinclair authorize Marion Simpkins to work out his time and taxes upon said road running from the Bodley land to Craft’s run. The witness stated that his father moved from Pennsylvania in 1800 or 1801. Does not know what road he moved on. There was no other road for him to move on but that road, from where he moved (from Jimtown) to this State. F. R. Sinclair testified: That he was seventy-one years of age, and was acquainted with the road in question. Was overseer of roads in that precinct, some time between 1875 and 1878, for two years; and that he, as such road surveyor, authorized Marion Simpkins, or gave him permission, to work out his road tax or per diem on said road running from the Bodley farm along the lands of James Lazzell, Asa Davis (now
The cause came on to be heard February 23, 1897, upon the hill and exhibits filed therewith, and the injunction theretofore granted; the answer of the defendant, and exhibits filed therewith, and general replication thereto; and the demurrer to the plaintiff’s bill, which demurrer was overruled; the depositions taken and filed in the cause, both on behalf of the plaintiff and defendant, and exhibits filed therewith ; and upon the papers read, orders entered, and proceedings had in the cause, and upon the motion of the defendant to dissolve the injunction, — and was argued by counsel, whereupon, after due consideration, the injunction was perpetuated, and the defendant’s motion to dissolve the injunction overruled, with judgment for costs against the defendant, from which decree the defendant appealed, and assigned the following errors: “(1) The court erred in not dissolving said injunction, and in not sustaining the demurrer to the said bill, because there is no equity in the bill. It states no cause for the interposition of a court of equity. It has been held a number of times by your honor's court that, before equity will enjoin a trespass to real estate, two things must co-exist: First, good title must be shown in the plaintiff ; and, second, the damage done must be irreparable. Upon the face of the said bill, there are no grounds for an injunction. (2) If a court of equity has jurisdiction, no case is made by the plaintiff in his proof, and the court erred in refusing to dissolve the said injunction, and also in perpetuating it:
“To warrant the interference of a court of equity to restrain a trespass, two conditions must co-exist: First, the plaintiff’s title must be undisputed, or established by legal adjudication; and, second, the injury complained of must be irreparable in its nature.” Schoonover v. Bright, 24 W. Va., 698. The appellee files with his bill title papers, and offers other evidence showing conclusively that he has good title to the tract of one hundred and forty-three acres of land through which the old road passed, and upon which he complains that the trespass complained of was committed. AppelJant’s contention is that the fence thrown down by him was built across the road, — hence, was not on the premises of appellee; that it was simply an obstruction which he had a right to remove. If, as appellant claims, the south end of the old road was never annulled or vacated, but remained a public road, then it is clear that appellee’s title to the land where he built the fence across the road was not undisputed. In the proceedings to establish the new road, or alteration in the road, in 1862, and then again in 1864, it does not appear that a discontinuance of the old road was contemplated, as the new road was placed on a location such a distance from the old location, and abutted by other landowners, as to deprive the abutters on the old- road entirely of an outlet in case it should be discontinued, and there seems to have
It appears from the record that appellee’s grantor at one point encroached upon and fenced up the old roadbed, but left room on b:s land alongside of it for the road, some twelve or fourteen years before the institution of this suit, which new location has since been used as such road, and which is at the point where appellee built the fence across it in August, 1892; and he now contends that under section 20, chapter 35, Code, he can hold it under the limitation there provided. If it was a public road, as appellant contends, his (appellee’s) action in the premises (the surveyor consenting or acquiescing therein) would simply work a change or alteration in the road, under section 21, chapter 43, and the new would be substituted for the old. Bridge Co. v. Simmers, 13 W. Va., 477; also, Almy v. Church, 18 R. I., 182, (26 Atl. 58).
It is contended by appellee that appellant, in his answer, does not controvert or deny the allegation in the bill that appellee has clear and uncontrovertible title, and that defendant does not claim the title to the land, or any pai't of it, and therefore it must be taken as true, for the purposes of this suit. Code, c. 125, s. 36. Appellant, while not claiming title in himself to any part of the land, denies the right of the appellee to the land where the fence was built which he threw down, and claims that he had the right to use it as a road. And it may be a public highway, “though it leads only from a public road to the dwelling or farm of a single person.” Varner v. Martin, 21 W. Va., 534; Lewis v. Washington, 5 Grat., 265. “A bill of injunction should contain a distinct averment of irreparable injury, and the facts must appear on which the allegation is predicated, in order that the court may be satisfied as to the nature of the injury.” Farland v. Wood, 35 W. Va., 458, (14 S. E. 140). Appellee makes no allegation of the insolvency of appellant, and the trespasses alleged are such that there could be no difficulty in ascertaining the damages in an action at law. As is said in Cresap v. Kemble, 26 W. Va., 606, as a general rule an inj unction is not granted to restrain a
Reversed.