CHARLESTON. Lazzelf v. Garlow.
| Decision Date | 26 March 1898 |
| Citation | 44 W.Va. 466 |
| Court | West Virginia Supreme Court |
| Parties | CHARLESTON.Lazzelf v. Garlow. |
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. (p. 480).
As a general rule, an injunction should not be granted to re- strain a mere trespass to real property, when the injury complained of is not destructive of the substance of the inheritance, of that which g-ives it chief value, or is not irreparable, but is susceptible of complete pecuniary compensation, and for which the party may obtain adequate satisfaction in the law courts; and in no such case should it be granted in the absence of an allegation of the insolvency of the defendant. (p. 483).
No public road once established by any of the modes prescribed or provided by law can be discontinued by proceedings of the iuthorities of a county without the three-weeks public notice required by section 30, chapter 43, Code. (p. 481).
Appeal from Circuit Court, Monongaia County.
Suit by Luther J. Lazzell against J. Marion Gar low for an injunction. From a decree perpetrating an injunction granted, defendant appeals.
Reversed.
Okey Johnson and L. V. Keck, for appellant.
Cox & Baker, and I. G. Lazzell for c, ppellee.
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 and 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 fencesand to haul through his land; that he threw plaintiff's land open to the commons, and stock run- ning at large were almost constantly and daily entering his land, and depasturing and damaging the same, besides putting plaintiff to the trouble and expense of turning them out, and preserving, as far as he could, his pasture from destruction, his land from being trampled, his sod upturned, and other damages being done to his said land, and that by reason of such trespasses he was unable to have the use of his land for pasture and otherwise, and that irreparable damage would be, and was being, done him by the trespasses of the defendant; that the damages could not be measured by any accurate standard, on acaccount of the nature of the trespass and the character of the damages, and that his remedy at law was not adequate, and praying for an injunction inhibiting and restraining said defendant, his agents and employes, and all other persons, by virtue of any authority, permission, and agreement of and with the said defendant, from permitting such trespasses, or passing through any of the land of the plaintiff in the bill mentioned, either at the place where the defendant had been injuring and tearing down fences, hauling and driving over said land, or at any other place within the inclosure of the plaintiff, or within the limits of the boundary of plaintiff's land aforesaid, until such time as the defendant should answer in the premises, and show cause why he should not be restrained. An injunction was granted thereon, according to the prayer of the bill, by the judge of said court, on the 14th of September, 1892. At the same rules the defendant filed his demurrer to the bill, averring that the same was not sufficient in law, and, taking said averments of the bill as true, that plaintiff has adequate and full remedy therefor at law; and, without waiving said demurrer, defendant proceeded to answer said bill, wholly denying all material allegations thereof, denying that he had trespassed upon plaintiff's land, or destroyed his fences upon his land, but claiming:
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 his fence, was on, over, and along a public big road, located and established there so long ago that the memory of the good people of that community knoweth not to the contrary, and that said road had been worked and kept up by the public in like manner as other public roads of the county, and by the private labor of respondent and others using the same, without objection by the plaintiff or any one else, until about the time of the committing of the alleged acts of trespass by respondent, when plaintiff, to annoy, hinder, and prevent respondent and his vendees from getting a large lot of heavy timber, respondent had sold, to market, said plaintiff, or his confederates, with his knowledge and concurrence, built a fence on and across said road, as in said answer more fully shown; and that this was the fence, and the only fence;, of plaintiff, that respondent laid down as the teams hauling came to it, and this road was the only place along or over which said teams or respondent passed or attempted to pass with said teams or carts, as the plaintiff well knew, notwithstanding the false and malicious allegations and insinuations of his iniquitous bill; and respondent was informed and believed that the neighborhood where these lands lie was, if not the oldest, among the oldest, improved lands in the country, antedating the Declaration of Independence, and at a very early date (perhaps as early as 1790) a public road was duly established and opened from the Pennsylvania line, at a certain point, marked "O" on a diagram filed with his answer, running thence southward to the southwest corner of what is now plaintiff's land, and thence on in the direction of Maidsville and Morgan town, which road for many long years constituted the only public road through and from that settlement to Morgantown, their county seat. That said route and road was fenced on both sides nearly the entire length for many years by the respective landowners, and up to the 18th day of August, 1892, when plaintiff built a worm fence, two or three panels long, over and across said road, for the purpose of preventing respondent from getting out from his lands a large lot, to wit, one hundred and fifty sticks or trees, of heavy timber that he had sold to one John Sidwell; and files a plat of said road and abutting lands, which is made part of the record. That respondent's lands laid down on said plat are the tracts called "Bodley Land," containing forty-one acres, and the other north of it, containing one hundred and sixty-five acres; the same lands conveyed to respondent by his father, John Garlow, by deed bearing date the 1st of April, 1875, a copy of which is filed with the answer, which lands respondent says are very valuable, with a road to get to and from them. That the lands south of respondent's forty-one acres are complainant's, southward as far at least as L, a point marked on the plat, and he also owns a lot of land called the "Simpkins Land." That, a good many years ago, Thomas Lazzell, Sr., the grandfather of the plaintiff, had a public road established and opened between points named on the plat. That soon after the opening of this last named road, to wit, about the day of, 1856, a petition was filed by William
Conaway and others before the county court of said county, asking for a view or a review of a route for a road commencing at the mouth of Craft's run, a branch of Robinson's run, at L, on said plat, and thence by James Lazzell's land to the Pickenpaugh farm, at or near the Pennsylvania line, and viewers for the same were appointed; and on the 22d day of September, 1856, the county court made an order establishing said road. And respondent filed, as an exhibit with his answer, a copy of the order of the county court, which says that "on Monday, the 22d day of September, 1856, Mathias W. Davis, commissioner of roads for the W. D. of this county, this day reported to court a survey of alterations in the road from the mouth of Craft's run, through lands of James Lazzell, the heirs of George W. Simpkins, the heirs of Ephraim Garlow, George Keener, and Amos S. Courtney, to the Pennsylvania line; and, it appearing that the proprietors do not dissent, it is ordered that the said road be opened and established as a public highway, and that the petitioner's costs be paid to the proper officers out of the county levy." That not long after the establishment of the said road, which gave an outlet to the landowners in the direction of the court house, the owners of the said lands now owned by respondent, and Simpkins, the owner of said ten acre parcel, who had no other outlet in the direction of Maidsville and the court house than said old road, to wit, on the 25th September, 1868, William E. Garlow and others filed their petition before the then board of supervisors of said county, asking-said board to disannul a part of said old road first named, leading-from Asa Davis' to the state line, beginning-at tire west or northwest corner of James Lazzell's land, known as the "Simpkins Land," and ending near the old...
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