Plaintiff v. Petitioner

• Decision Date: 23 March 1901
• Citation: 49 W.Va. 348
• Court: West Virginia Supreme Court
• Parties: McEldowney et al. v. Lowther et al.

49 W.Va. 348

McEldowney et al.

v.Lowther et al.

Supreme Court of Appeals of West Virginia.

Decided March 23, 1901.

1. Appeal Injunction Motion to Dissolve.

The exercise of a sound discretion without abuse by a circuit judge in overruling a motion in vacation to dissolve an injunction is not reviewable, and reversible action, (p. 349).

2. Injunction Bill Answer Continuance.

If the bill, answer, and affidavits show a prima facie case of nuisance in favor of the plaintiff, the circuit court commits no error in continuing the injunction until the hearing on the merits, (p. 349).

3. Bill Allegations Construction.

A preliminary injunction will be construed to be in accord with the allegations of the bill if the language used will admit of such construction, (p. 350).

Appeal from Circuit Court, Wetzel County.

Bill by John C. McEldowney and others against F. P. Lowther and others. From an order refusing to dissolve an injunction, defendants appeal.

Affirmed.

E. L. Robinson, Cornett & Newman, and T. P. Jacobs, for appellants.

Hall & Hall, for appellees.

Dent Judge:

F.P. Lowther and the Exchange Telephone Company of Littleton appeal from a vacation order of Judge Farr, 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 to the property of plaintiffs and others abutting on said avenue. The defendant appellants filed their answers, admitting the allegations of the bill, that defendant Lowther was about to erect a line of telephone poles along the east side of said avenue; that he had a line along the west side of the avenue, but it was insufficient to accommodate the demands of his business and owing to the fact that the Bell Telephone Company also had a line along the west side of such avenue, defendant's line could not be improved so as to accommodate his business and for this reason he desired and it was necessary to remove his line to the east side of the avenue, where he would have more room, and he claimed the right to do so under the original ordinance of the town council permitting him to erect the first line, for the reason that the language used was plural and not singular and granted him the privilege of erecting lines instead of line. He further denied that the plaintiffs would be injured by such line as he proposed to erect.

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 dissolved 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....