132 Va. 274 | Va. | 1922
delivered the opinion of the court.
The defendants demurred to the bill, and their demurrer being overruled, they thereupon filed their separate answers thereto. Depositions were taken and the trial court awarded a peremptory injunction requiring the defendant, Mathias, to remove the pipes on his land within thirty days, and the questions here presented arise on an appeal from that decree.
There is no error in the decree overruling the demurrer, for the jurisdiction of equity to entertain and determine such cases appears to be perfectly well settled. Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165; Williams v. Green, 111 Va. 205, 68 S. E. 253; Witt v. Creasey, 117 Va. 872, 86 S. E. 128; Muncy v. Updyke, 119 Va. 636, 89 S. E. 884; Clark v. Reynolds, 125 Va. 626, 100 S. E. 468; Landrum v. Tyler, 126 Va. 600, 101 S. E. 788.
The evidence here, however, discloses some peculiar fea
These authorities sustain the proposition that under the circumstances indicated the equity court will generally require a previous trial at law: Rhea v. Forsyth, 37 Pa. St. 503, 78 Am. Dec. 441; Oswald v. Wolf, 129 Ill. 200, 21 N. E. 839; Perkins v. Foye, 60 N. H. 496; Oppenheim v. Loftus (N. J. Ch.), 50 Atl. 795; Hart v. Leonard, 42 N. J. Eq.
Taking tall of the peculiar circumstances of this case under consideration, we are of opinion that the court erred in granting the relief prayed for. The disputable issues of fact involved should first be submitted to a jury in a common law action, and this suit in equity held to await the establishment or failure to establish the complainants’ right. If the right is thus established, the mandatory injunction should foe awarded, otherwise the bill should be dismissed.
Reversed cmd remanded.