49 W. Va. 348 | W. Va. | 1901
E. P. Lowther and the Exchange Telephone Company of Lit-tleton appeal from a vacation order of Judge Parr, of the circuit court of Wetzel County, refusing to dissolve an injunction granted to John C. McEldowney and others by the Hon. Thayer Melvin, Judge of the First Judicial Circuit.
The plaintiffs for and on behalf of themselves and' other citizens of the town of New Martinsville obtained an injunction restraining the defendant, appellants, from unlawfully erecting additional telephone poles and stringing wires thereon along Maple Avenue in said town to the irreparable injury and damage
The defendants then moved in vacation for a dissolution of the injunction. The judge on consideration of the bill and answer and affidavits filed refused to either dissolve or modify the injunction granted, but continued it until final hearing. It is a matter of sound discretion to continue or dissolve an injunction on the. filing of the answer contesting the equities of the bill, and the injunction should not be dissolve'! if its continuance will subserve the ends of justice, and protect the rights of the parties in interest. Nor will this Court interfere with the action of the circuit court in such cases, unless the circuit court has plainly abused its discretion in this respect. 10 Ency. Plead. & Prac., 1059; High on Injunction, s. 1467; Robrecht v. Robrecht, 46 W. Va. 738. When the papers as presented make out a prima facie case of nuisance on motion to dissolve in vacation, the injunction should be continued until the hearing. McGregor v. Camden, 47 W. Va. 193, (34 S. E. R. 936); Hogg’s Equity Principles, s. 284; Heatherly v. Farmer's Bank, 31 W. Va. 70. It is plain from the allegations of the bill and the admissions of the answer that the defendant is actively engaged in erecting a nuisance, to the great injury and detriment of plaintiffs’ property and unless he has acquired the legal right to do so, the injunction should be perpetuated. Elliott on Roads and Streets, ss. 644, 664, 665, 666; McDonald v. Newark,
The order complained of is affirmed.
Affirmed,.