Given v. United Fuel Gas Co

• Citation: 99 S.E. 476
• Parties: GIVEN et al. v. UNITED FUEL GAS CO.
• Decision Date: 20 May 1919
• Court: Supreme Court of West Virginia

99 S.E. 476

GIVEN et al.

v.UNITED FUEL GAS CO.

Supreme Court of Appeals of West Virginia.

May 20, 1919.

(Syllabus by the Court.)

Appeal from Circuit Court, Kanawha County.

Suit by B. K. Given and others against the United Fuel Gas Company and others for the cancellation of a deed granting a right of way for a pipe line and for other relief. From a decree dismissing the bill as against the named defendant, plaintiffs appeal. Reversed and remanded.

Charles J. Hogg, of Charleston, for appellants.

R. G. Altizer, of Charleston, for appellee.

POFFENBARGER, J. This appeal is from a decree dismissing a bill in a suit in which there was good cause of action at the date of the institution thereof, but which was partially nullified by subsequent action of the defendant. The altered situation still left right in the plaintiffs to have a pecuniary recovery from the defendant, and the contention of the plaintiffs is that the amount due them should have been ascertained and decreed to them in this suit They may obtain part or all of what they are entitled to by means of a statutory proceeding in a court of law, and the appellee contends they must resort to it.

The purpose of the bill was cancellation of a deed executed by a widow in possession of a tract of land of which her husband had died seized and possessed, and purporting to grant to the defendant the right of way for its pipe line through and over said tract of land, inhibition by injunction of the maintenance and operation of the pipe line laid across the land in 1910 or 1911, on the faith of the deed in question, removal of the pipe line, and compensation for the injury done, by a decree for damages.

Realizing the invalidity or uncertainty of its title to the right of way, the defendantexecuted and filed in the circuit court of Kanawha county a bond conforming to the requirements of section 20, c. 43, Code (sec. 1740), and conferring upon it the right "to enter upon the enjoyment of its easement, " and set up said bond and the proceedings leading to approval thereof in its answer. In such case the statute passes title to the easement and authorizes either the landowner or the condemnor to institute proceedings for ascertainment of the compensation for the land taken and injury to the residue, payment of which is secured by the bond. The plaintiffs amended their bill, after the filing of the answer, admitted the subsequent procedure of the defendant, denied the validity thereof, and prayed an injunction against the prosecution of the condemnation proceedings. Depositions were taken and filed by the plaintiffs only, and the court, on the hearing, dismissed the bill.

The appellants have abandoned their claim of right to injunctive relief, but they insist that the court should have canceled the deed and ascertained and decreed to them damages for the trespass. In the brief filed for the appellee these contentions are resisted, but no effort is made to sustain the deed or absolve the appellee from liability for damages. Its position is that cancellation of the deed is useless, and the right to have the damages, if any, assessed in the condemnation proceeding precludes right to a decree therefor in this suit.

Purporting to grant a right of way over the land and having been executed by a person in whom the title was not vested, the deed cast a cloud upon the title, and should have been canceled. The widow's dower had not been assigned; wherefore, although in possession of the land, she was only a tenant of the heirs, without right or authority to dispose of it or fix upon it the burden of an easement. However, inasmuch as the appellee had acquired the easement at the date of the decree, and the deed purports no more than creation of the same easement, failure to cancel it may have been a harmless error for which the decree should not be reversed, unless there is some other prejudicial error in it.

That there was equity jurisdiction and merit in the bill at the date of the filing thereof is clear. The entry upon the land was clearly wrongful. The proof is that the appellee was fully advised of the state of the title and informed as to the names and residences of the owners of the land before it took the deed and entered upon the land,, and that some of the owners were entirely ignorant of the transaction until after completion thereof. On their part there was no knowledge of the entry and occupation at the time thereof, nor any acquiescence therein. Their compensation had neither been paid nor secured. In such cases equity has jurisdiction by injunction. Jackson v. Railroad Co., 63 W. Va. 18, 22, 59 S. E. 749; Lewis, Em. Dom. § 904. At the date of the institution of the suit, there was equity jurisdiction also to cancel the deed. Having jurisdiction for these purposes, the equity court could have gone on and awarded damages by the final decree. In numerous instances the power of courts of equity, having jurisdiction for other purposes, to hear and determine purely legal demands growing out of the transaction constituting the ground of equity jurisdiction, and award such demands by way of alternative relief, has been affirmed.

"If a court of equity obtains jurisdiction of a suit for the purpose of granting some distinctively equitable relief, such, for example, as the specific performance of a contract, or the...