Johnson v. Gould

• Decision Date: 19 November 1907
• Parties: JOHNSON v. GOULD et al.
• Court: West Virginia Supreme Court

59 S.E. 611

62 W.Va. 599

JOHNSON v. GOULD et al.

Supreme Court of Appeals of West Virginia.

November 19, 1907

Submitted June 14, 1907.

Syllabus by the Court.

A circuit court has no power, in a cause decided by the appellate court, to rehear it as to any matter so decided and, though it must interpret the decree or mandate of the appellate court, in entering orders and decrees to carry it into effect, any decree it may enter that is inconsistent with the mandate is erroneous and will be reversed.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4661-4665.]

A decision of the appellate court, declaring the right of the owner of land, on which there is a spring of water, to have the spring supplied from the land of an adjoining proprietor, to the extent of the natural flow of water therefrom, and remanding the cause for such proceedings as may be necessary to carry the decision into effect, cannot be modified by the court below so as to give to the spring owner only the quantity of water afforded by the flow on a given date.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4696-4700.]

Appeal from Circuit Court, Wood County.

Bill by Nannie K. Johnson against Fannie M. Gould and others. From a decree, plaintiff appeals. Modified and affirmed.

See 53 S.E. 798.

Dave D Johnson, for appellant.

Wm. Beard, for appellee Fannie M. Gould.

POFFENBARGER J.

After the chancery cause of Johnson v. Gould, decided by this court, February 20, 1906, and reported in 60 W.Va. 84, 53 S.E. 798, had been remanded to the circuit court of Wood county, and the mandate entered there, a decree was prepared by the counsel for Mrs. Johnson, and presented to the court for entry. Thereupon counsel for Mrs. Gould objected to the entry thereof, on the ground that it did not conform to the mandate and opinion of this court, and the court modified it before allowing it to be entered. Feeling that the decree so entered did not give her the full measure of relief to which she is entitled, as determined by the decision of this court, Mrs. Johnson has appealed.

The mandate required such decree or decrees of the lower court as should, among other things, "be necessary to carry into effect the principles stated and directions given in the written opinion" filed. In the conclusion of the opinion, it is said: "She (Mrs. Johnson) is entitled to an injunction against the maintenance by Mrs. Gould of the new spring, the tunnel, or ditch, and all other constructions made by her, in so far only as the same materially interfere with, impair, or destroy the easement to which Mrs. Johnson is entitled for her land. Mrs. Johnson, under the circumstances of this case, is also entitled to have the land of Mrs. Gould restored to the condition in which it was at the time of the partition, if that can be done (except where such...