Smith v. Point Pleasant & O.R.R. Co.

• Decision Date: 04 February 1884
• Citation: 23 W.Va. 451
• Parties: SMITH v. POINT PLEASANT & OHIO RIVER R. R. CO. et als.
• Court: West Virginia Supreme Court

23 W.Va. 451

SMITH v. POINT PLEASANT & OHIO RIVER R. R. CO. et als.

Supreme Court of West Virginia.

February 4, 1884

Submitted Jan. 18, 1884.

1. The syllabi in Spencer v. The Point Pleasant &amp Ohio River Railroad Company et al., and Campbell v The Same, approved. (p. 451.)

2. When a railroad company, by consent of a town-council, is building its road through the streets of a town, and the owner of an adjoining lot seeks an injunction till a court of equity ascertain the damages he will sustain, giving as a reason for such injunction that the court of common-law will furnish no adequate remedy, as the plaintiff would have to bring repeated suits to recover for the damages he might sustain as he would recover in any one suit only the damages which he might have sustained prior to the institution of such suit and on its termination would have to bring a like suit for his damages subsequently sustained, and so on for an indefinite period, this reason furnishes no ground for the interposition of a court of equity, as all damages of a permanent character may be recovered in such case in the first suit at law, and there is not only no necessity for such repeated suits at law, but after such first suit, in which the entire damages are recovered, no second suit could be brought, except to recover damages which did not necessarily result from the building and proper use by the railroad company of its track in such street. A second suit could only be brought for the careless running of cars in such street or for other wrongs done by the railroad company, not including the injury necessarily resulting from the running of its cars in such street, which is the right of the company. (p. 452.)

George F. Church and C. H. Lamison for appellant.

Simpson & Hubbard, C. E. Hogg and Tomlinson & Polsley for appellee.

GREEN JUDGE:

The material facts of this case are the same as those in the cases of Spencer v. Railroad and Campbell v. The Same, which have just been decided by this Court; and the decision in those causes must control the decision of this cause, and this Court must render in this cause a decree similar to the decrees of this Court in those causes. There was however one point, which has been in argument urged in all these causes, which was not referred to in the opinion of the Court in those causes. It is insisted by the appellee's counsel, that this was a proper case, in which to grant an injunction, because from the character of the injury complained of there would be no adequate redress at law, as it was a continuing injury, and the courts of law in actions brought against the railroad company could only give damages for the injury, which the plaintiff had sustained at the time when the action was instituted and to obtain relief he would be compelled, as soon as his first suit was terminated, to institute another for the damages he had sustained since the institution of the first suit, and so would have to go on indefinitely instituting suit after suit; that relief so obtained is utterly inadequate; and therefore equity could properly entertain jurisdiction of the cause, as it could have not only the past damages but also all future damages, which would result to him from the making of the railroad in this street, and which were of a permanent character and affected the value of his lot, estimated and paid in one suit; and then a multiplicity of suits would be avoided.

These views are unsound and are...