The Western M. v. The Va. Cannel Coal Co. Et. Al.

• Decision Date: 01 May 1877
• Citation: 10 W.Va. 250
• Court: West Virginia Supreme Court
• Parties: The Western M. & M. Co. et. al. v. The Virginia Cannel Coal Co. et. al.

10 W.Va. 250

The Western M. & M. Co. et. al.

v. The VirginiaCannel Coal Co. et. al.

Supreme Court of Appeals of West Virginia.

Decided May 1st, 1877.

1. A fact which has been directly tried and decided by a court of competent jurisdiction, cannot be contested again between the same parties in the same, or any other court. It is res judicata.

2. But to make it res judicata, it must have been directly, and not collaterally, in issue in the former suit, and there decided.

3. It makes no difference whether the fact has been decided in a court of law or chancery, provided the court had jurisdiction thereof; and the decree or judgment may be pleaded as an estoppel either in a law or chancery court.

4. It is not necessary that precisely the same parties were plain-tiffs and defendants in the two suits; provided the same subject in controversy, between two or more of the parties, plaintiffs and defendants to the two suits respectively, has been in the former suit directly in issue, and decided.

5. Where a decision of a former suit is pleaded as an estoppel, so much of the former record must be set out, or made part of the pleading, as will show that the precise question has been adjudicated in the former suit.

6. Where a court of chancery has jurisdiction for one purpose, it will not send the parties to a court of law, but will retain the jurisdiction for all purposes, and do complete justice between the parties.

7. The questions, of ownership, and right to the possessor of the interlock under the title derived from Wm. M. Peyton, and all questions of controversy as to the interlock between the parties to this injunction suit under said title, and in- volved therein, are settled and adjudicated, in the suit in chancery between substantially the same parties decided in 8-W. Va. 412.

8. If an amended bill is tendered and the court below refuses to allow the same to be filed, if upon an inspection of the whole record, the appellate court sees that if it had been tiled, it could not have affected the merits of the case, and that the party tendering it was not prejudiced by the refusal of the court to allow it to be filed, under such circumstances the refusal of the court below to allow the amended bill to be filed is no ground for reversing the decree of the said court.

9. Under section 12 of chapter 125 of the Code, the plaintiff may amend his bill at any time after the appearance of the defendant, if substantial justice will be promoted thereby; but the Judge of the court below, is clothed with discretion to say " where substantial justice will be promoted thereby," and unless the record shows, that the court erred in exercising that discretion, the decree denying the right to amend, will not be reversed.

10. Where new matter has arisen since the riling of the original bill, such new matter can only be introduced into the case, by a supplemental bill.

11. A bill of injunction is fatally defective which does not aver good title in the plaintiff, contains no charge of insolvency against the defendants, does not show that irreparable damage will result if the injunction is denied, and prays an injunction to restrain a naked trespass upon real property.

This is an appeal granted upon the petition of the Western Mining and Manufacturing Company and their successors, the Philadelphia Cannel Coal Company, to a, decree rendered by the circuit court of Kanawha county, on the 23d day of December, 1875, in a chancery cause in which said Western Mining and Manufacturing Company were plaintiffs, and the Virginia Cannel Coal Company and others were defendants, dissolving an injunction granted in favor of the plaintiffs by Judge H J. Samuels on the 10th day of May, 1866, and refusing fo allow the plaintiffs to file an amended bill of injunction, and declaring that the rights of the parties to the land in controversy had been finally adjudicated, settled and determined, by a decree of the Supreme Court of Appeals, rendered on 4th March, 1875, in a chancery cause in which the said Western Mining and Manufacturing Company were plaintiffs, and the said Virginia Cannel Coal Company and others were defendants. A full report of which cause, containing a map of the lands in question, will be found in 8 W. Va. 406.

Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered the decree appealed from.

Johnson, Judge, who delivered the opinion of the Court, prepared the following statement of the case:

In 1866, the Western Mining and Manufacturing Company filed its bill in the circuit court of Boone county, the principal allegations of which were:

First. That on the 31st day of March, 1851, Wm. M. Peyton and wife, by proper deed of record, in Boone county, conveyed to the Virginia Cannel Coal Company 6, 123 acres of land on Big Coal river, in Boone county, by specified metes and bounds.

Second. That afterwards, on the 6th day of January, 1857, the said Peyton and wife, by deed of record, conveyed to Edwin Mitchell and Jesse E. Peyton, by certain defined metes and bounds, six several tracts of land, adjoining each other, situated on Droddy's creek, a branch of Coal river, and also adjoining the 6, 123 acres conveyed by Peyton to the Virginia Cannel Coal Company.

Third. That those six tracts of land were, on the 7th day of October, 1857, conveyed by Mitchell and J. E. Peyton to the plaintiffs, The Western Mining and Manufacturing Company.

Fourth. That a survey of the lands embraced in the deed to the Virginia Cannel Coal Company showed that the true quantity thereof was 7, 510 acres, instead of 6, 123 acres, being an excess of 1, 387 acres over and above the quantity intended to be sold to said company by Wm. M. Peyton.

Fifth. That a like survey showed that there was a deficiency of 1, 300 acres in the lands sold by Peyton to Mitchell and Peyton, and by them to the plaintiffs.

Sixth. That said surveys also show that the excess in one, and the deficiency in the other, was caused by the said Wm. M. Peyton having conveyed parts of the same lands to both of said companies, causing an interlock, which is now the subject of mutual claim and dispute.

Seventh. That to correct this, proceedings were instituted prior to 1861 on the law side, and provision made in the arbitration agreement, for instituting the same on the equity side of the court, and the question afterwards submitted to arbitration, by written agreement of the parties.

Eighth. That during the rebellion the papers of the case on the law side of the court were lost.

Ninth. That the plaintiff was preparing again to institute proceedings on the equity side of the court against the Virginia Cannel Coal Company, as provided for in the arbitration bond, to bring the conflicting interests of the two companies, within the interlock, to a final adjustment.

Tenth. That owing to the events of the last five years, the questions referred, to the arbitrators have not been settled, and are still the subject of dispute.

Eleventh. That the Virginia Cannel Coal Company are proceeding to cut down and carry off large quantities of timber within the interlock, valuable to the complainants, in any future operations of their coal mines.

Twelfth. That the complainants will complain, and hope to show, that the calls in the deed from William M. Peyton and wife to the Virginia Cannel Coal Company, which make the interlock, were mistaken calls, and that the lands within the interlock properly passed under the deed from Wm. M. Peyton and wife to Jesse E. Peyton and Edwin Mitchell.

The prayer of the bill is, that the Virginia Cannel Coal Company, its agents, &c, be inhibited and enjoined from cutting, removing, and carrying away, timber from "the land within the interlock, until the further order of the court, and until the rights of the companies are properly adjudicated. An injunction was granted as prayed for in the bill.

The cause was removed to the circuit court of Kanawha county, and nothing more done therein until the 6th day of November, 1875, when the defendants tendered their answer, and moved to dissolve the injunction. In their answer they also prayed for affirmative relief.

The answer is in substance as follows:

First, It admits that Wm. M. Peyton, on the 31st day of March, 1851, conveyed to the Virginia Cannel Coal Company, 6, 123 acres of land by metes and bounds.

Second, It admits that said Peyton afterward in the year 1854, conveyed to Jesse E. Peyton and Edwin Mitchell, a portion of the lands previously conveyed to the Virginia Cannel Coal Company, thereby creating the interlock mentioned in the bill.

Third, It admits that Peyton and Mitchell afterwards, conveyed the same lands to the Western Mining and Manufacturing Company; but denies that any title passed by any of said deeds, either to the said Peyton and Mitchell, or to the plaintiffs, to any portion of the said interlock, except to the Tetham Snodgrass land.

Fourth, It admits that the Virginia Cannel Coal Company and others commenced an ejectment suit, against the Western Mining and Manufacturing Company and others, for the recovery of the said interlock; the said company and the other defendants, in said action, having entered upon a portion of said interlock; also admits that the matters in dispute in said action were submitted to arbitration.

Fifth, It admits that during the war, most of the papers in said action of ejectment were destroyed.

Seventh, It admits that the Virginia Cannel Coal Company entered on said interlock, and cut and removed timber therefrom, in the year 1866, as the company had a right to do, under and by virtue of its deed from Pey-ton of the 31st of March, 1851.

Eighth, It denies each and every allegation in the bill, which directly, or indirectly alleges, that there was any mistake in the lines, or any of them, set out in the deed from Peyton to the Virginia Cannel Coal Company; and on the contrary it, avers, that the said lines and each of them, set out in said deed, were the true and correct lines of the...