B. & O. Railroad v. Wheeling Traction Co.
B. & O. Railroad v. Wheeling Traction Co.
Opinion of the Court
The material question presented by this record is the appeal-ibility of the decree complained of, which did nothing more than strike out, upon exception, certain portions of the defendant’s answer to the plaintiff’s bill, on which a preliminary injunction had been granted. The purpose of the suit is to enjoin the defendant, the Wheeling Traction Company, whose line of railway. is constructed and operated on the public road, along a steep hill side, at a place called “The Narrows,” between Wheeling and Moundsville, above the line of the plaintiff’s steam railroad, located at the foot of the same’hill side, from throwing earth, stone, timber and other materials down upon or near the railroad track of the latter. The defense, set up by the answer is a right, in the nature of an easement, to clear away landslides from said public road by removing the stone, earth and other materials to the lower side thereof or over the bank and allowing them to pass on down the hill on to the plaintiff’s right of way, or track, if need be. Expressing the opinion that denial, by the defendant, of its having interfered with the plaintiff’s right of way, as charged, or its acquisition, by contract or prescription or both, of a right to remove earth and other debris over plaintiff’s right of way and track, were the only possible defenses, consistent with admitted rights, the circuit court struck out certain portions of the answer, deemed by it to be in conflict with that opinion.
In setting forth the defendant’s claims and contentions, the answer, after having fully described the location and relative positions of the two railroads, detailed the history of the acquisition of their several rights. Originally, the county road occupied the present site of the plaintiff’s railway. About the year 1852, that railway was built on said public road, and what is called a trail along the hill side above it was opened by the plaintiff for use in lieu thereof. Sometime after this was done, the plaintiff was indicted for having obstructed the public road at the place in question. Then an agreement for arbitration was executed by the plaintiff and the county court of Marshall county. Under the articles of submission, an alternative award was made, giving the plaintiff the right either to pay to the county court $5,800.-
The statutory right of appeal from a decree settling the principles of a cause is not controverted, but the character of this decree has been discussed at very considerable length in the briefs, the appellant regarding it as an appealable one and the appellee resisting this interpretation of it. Nor does there seem to be any very great difference of opinion among counsel as to what constitutes a settlement of the principles of a cause. Argument of the appellant proceeds upon the theory of the elimination from the answer, by the action of the trial court, of the only defense therein set up. While this claim is denied in the argument for the appellee, the denial is not supplemented by any analysis of the answer as it stood, before portions of it were stricken out, or any interpretation of it as it now is. Tn our opinion, the claim made in the brief for the appellant is entirely too broad. The eliminated portions of the answer did not constitute the sole defense, nor indeed, any portion of the defense set up. All that has been excluded or stricken out is mere matter of evidence and argument, based largely upon the documents which remain as exhibits filed with the answer. No claim of any right or easement is expressly asserted in the eliminated portions. That appears in those, portions as to which the exceptions were overruled. In them, is found not only the assertion of the defendant’s alleged right, by way of excuse for the acts complained of and justification thereof, together with the denial of some of the charges of the bill, but also a very full statement of the relevant and material facts.
As the court expressed the opinion in its decree that only certain defenses, hereinbefore stated, can be made, and filed a written opinion in which some of the contentions and claims set up in the answer are disapproved and declared to be untenable, it is probable that, in some subsequent decree, or on the final hearing, they will be partially or wholly disallowed, but the court has not proceeded that far yet. The opinion is accorded entirely too
Another rule, requiring adjudication of all the principles of the cause, as a requisite of appealability, would necessitate dismissal of this appeal. If it be conceded that the order goes beyond elimination of evidential matter and actually adjudicates something, it clearly does not settle all the principles of the cause. The answer still contains defensive matter. That a decree, to be appealable, must settle all the principles of the cause, has been repeatedly decided. Hill v. Cronin, 56 W. Va. 174; Hooper v. Hooper, 29 W. Va. 276, 283; Shirey v. Musgrave, 29 W. Va. 131; Hill v. Als, 27 W. Va. 215; Laidley v. Kline, 21 W. Va. 21; Camden v. Hayman, 9 W. Va. 680; Steenrod v. Railroad Co., 25 W. Va. 133; Buehler v. Cheuvront, 15 W. Va. 479.
Having been improvidently awarded, the. appeal will be dismissed.
Dismissed..
Reference
- Full Case Name
- B. & O. Railroad Co. v. Wheeling Traction Co.
- Status
- Published