CHARLESTON.

#### Grafton & Belington Railroad Company *v.*Buckhannon *&*Northern Railroad Company.

Submitted September 13, 1904.

Decided December 13, 1904.

1. Railroad *Crossing*— Jurisdiction *at Law to Condemn*— Juris*diction.*

The circuit courts have jurisdiction at law in proceedings for the condemnation of crossing hy one railroad company over the-real estate and line of another railroad company, (p. 459).

2. Injunction.

Injunction will not lie to restrain such proceedings, (p.. 460).

Appeal from Circuit Court, Barbour County.

Suit by tire Grafton & Belington Railroad Company against, the Buckhannon & Northern Railr.oad Company. Decree for defendant, and plaintiff appeals.

*Affirmed.*

A. G. DaytoN and Fred. 0. Blue, for appellant.

Samuel V. Woods and Reese Blizzard, for appellee.

MoWi-lorter, Judge:

The Buckhannon and Northern Railroad Company, a corporation under the laws of the State of West Pirginia, filed its petition after due notice given in the circuit court ®f Barbour county for the purpose of condemning a right of way for crossing over the line o.f the. Berry Branch of the Grafton and Belington Railroad Company on the west side of the Tygarts Yalley River, necessary to the petitioner in building and constructing its road for public use from the town of Buckhannon in Upshur county through the counties of Barbour, Taylor and Marion to Fair-mont in Marion county, and thence to the Pennsylvania State' line, praying that commissioners be appointed by the ‘said court to ascertain and report what would be a just compensation to-the owners for the real estate and crossing sought to be obtained for the said purposes, and that such other proceedings-might be had in said premises as the law might require, and that upon payment of compensation found to be just peti*459tioner might have the right and privilege to construct, main-' tain and operate said railroad across the said Berry Branch of the Grafton and Belington Railroad Company at the point and. place designated in said petition, notice and maps therewith, filed. On the 27th day of February, 1904, the Grafton and Belington Railroad Company presented its bill in chancery against the Buckhannon and Northern Railroad Company, praying an injunction restraining the defendant from proceeding with its petition and application for a condemnation of said crossing at the point proposed as set out in said notice until a decree of a court of equity having jurisdiction had been obtained, decreeing that said crossing is a proper crossing and the mode and manner of said crossing, and that the court might fix and determine what is the proper crossing and the mode and manner of said crossing as provided by law. The court granted the order of injunction as prayed for. The defendant answered the bill and gave notice of motion to dissolve said injunction. On the 12th day of April the motion was heard in vacation before the judge of the circuit court of Barbour county at Grafton, when the defendant company tendered its answer,, demurrer and affidavits “A and B”, and moved the court to dissolve the injunction theretofore awarded in the cause. The motion was sustained and the injunction dissolved. The plaintiff appealed from said order of dissolution of the injunction. The first question to decide is whether an injunction will lie. It is contended by counsel for plaintiff that under section 11, chapter 52-, Code, the applicant to condemn was necessarily required to first go into a court of equity and procure a decree for such crossing. But there is another provision in sub-section 7 of section 50, chapter 54, Code, resjeecting grade or other crossings which gives the circuit court law jurisdiction for the condemnation thereof. “It is a well settled rule that a court of equity will not usually enjoin an action at law on grounds which may be urged as a defense to such action. Even in cases of concurrent jurisdiction the action will not be interfered with by a court of equity, unless that court can give a more perfect remedy or the case can be better tried by the procedure of that court.” 16 A. & E. E. L. 365, and in 1 High on Injunctions, sec. 45, in treating of the subject of restraining judicial proceedings, says: “It merely seeks to control the person to whom it is *460addressed, and to prevent Mm from using tlie process of courts of law where it would' be against conscience to allow him to pro-need. It is granted on the ground that an unfair use is being made of a legal forum which from circumstances of whicn ■equity alone can take cognizance should be restrained lest an injury be committed wholly remediless at law. And tlie power of courts of equity to restrain the assertions or doubtful rights in a manner productive of irreparable damage, and to prevent injury to a person-from the doubtful title of another is regarded .as one of the legitimate uses of equity”, and cases there cited. “In cases of concurrent jurisdiction proceedings at law .will not be interfered with by the Court of Chancery, unless that ■court can give a more perfect remedy, or the ease can .be better tried by the procedure of that court.” *Ochenbein*v. *Papelier,*L. R. 8 695; *Hoare*v. *Bremridge, Id.*22; *McLin*v. *Marshall,*1 Heisk. (Tenn.) 678. “If the defences set up in the bill to the defendant’s claim are the same as those made in the suit at law, or are only such as can be made in equity, it is clear that no injunction ought to be granted before judgment at law, although the bill may contain matter enough to warrant the granting it.” *Mutter*v. *Hamilton,*2 Hayw. 346. “The injunction should be to stay execution, not trial.” *White*v. *Steinwicks,*19 Ves. 85. The remedy of plaintiff is by writ of error, or in ■case the court is proceeding without jurisdiction and a more speedy remedy is desired, the writ of prohibition could be invoked. A court of equity is without jurisdiction to enjoin the proceeding.

There being no error, the decree dissolving the injunction is affirmed and the bill will be dismissed.

*Affirmed.*

PoeeeNbarger, PRESIDENT,

*(concurring) :*

I think the injunction was properly dissolved and concur in the affirmance of the order; but I am unwilling to say, on this appeal, that a condemnation proceeding for a railroad crossing ■can be sustained in a court of law without a previous determination, by a court of equity, under section 11 of chapter 52 of the Code, or by agreement, of the place of crossing and the manner of effecting it. That question is not properly before this Court, and I do not think it ought to be drawn in here on the far*461fetched theory, that it is an additional reason for the conclusion arrived at. The statute, which the syllabus and opinion virtually nullify, relates to great agencies of commerce and transportation, representing millions of capital and affecting the-prosperity and lives of the people in tlieir operation. Nevertheless it is drawn in here unnecessarily and incidentally and the intimation given out by this Court that it has been repealed by implication. Going further in this indirect method, the Court declares that, even if not repealed, it does not require the fixing of the place and manner of crossing before instituting the condemnation proceeding in the law court. May the railroad company, desiring the crossing, select the place and prescribe its own method of crossing, without reckoning the inconvenience and danger t® the other company and detriment to the public, arising from an improper location? Can the law court refuse the crossing demanded and grant another? Can it do more than find that the purpose for which the property is demanded is a' public use and that the taking is necessary, and authorize the crossing as demanded? Was it not the intention ©f the legislature, in passing section 11 of chapter *52*of the Code, to remedy this defect in the condemnation proceedings for crossings by referring the place and manner of the crossing to the' courts of equity, where, by means of depositions, plats and other documents, the situation might be more carefully and fully laid before the Court ? This case indirectly and incidentally forecloses all these important questions.

It amply suffices for the disposition of this appeal to say injunction is never used to restrain a court from proceeding on the ground of lack of jurisdiction, and that, in this case, there is an adequate remedy at law. “A writ of injunction is in no just sense a prohibition to. the courts of common law, in the exercise of their jurisdiction. It is not addressed to those courts. It does not even affect to interfere with them. The proeess, when its object is to restrain proceedings at law, is directed only to the parties. It neither assumes any superiority over the court in which those proceedings are had, nor denies its jurisdiction. It is granted on the sole ground that from certain equitable circumstances, of which the court of equity granting the process has cognizance, it is against' conscience that the party inhibited should proceed in the cause.” *2*Story’s Eq. Jur. §875.

*462Injunction does not lie when there is an adequate remedy at law. Here there is one. After the entry of an order authorizing the applicant to take possession of the land, a writ of error ■with a *supersedeas*is immediately available and completely efficacious, if there is any error in the proceeding, due to want 'of jurisdiction or any other cause. For the purpose of an application for the writ of error the court would enter an order •.suspending the judgment. Wo injury whatever could result. ‘Hence, there is no equity calling for relief against the appli- • caut, and none can be had by injunction against the court.

As the bill can, in no sense, raise the question of the extent of the jurisdiction of the law court, it is utterly incapable of 'bringing that question before this Court on appeal. We can only :say it is immaterial whether the law co'urt has jurisdiction. The remedy chosen cannot bring up that question. To test it, you must resort to the writ of prohibition.