Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1883-11-21
AN IMPORTANT CASE
NoIIer's Injunction Against the Ohio
fiiYer Railroad.
Upon What Findings He Based His Suit and
lie Views Taken by the Court
What His Counsel
Says.
.Spec'0t 10 The Register.

MCUGuSv LIE, November 20-Iu as much
Us the injunction case Of Nolier vs.. The
Ohio River Railroad Co, has created much
eminent and is of importance in its eiIec.,
YOUR reporter has since its decision by the
Court, on last Saturday. made inquiry OF
Mr.. McLure, Noller's counsel, concerning
the particulars Of the case, &c. He Informs
us that Noler applied for an injunction to
restrain the railroad company from damag-
ing his house and lot in this town in con-
structlng its track along the street in front
Of the same: relying, upon the case OF
Mason vs.. Harper's Ferry Bridge Co., re
ported in II w. Va. Reports.
The Court ia Deciding the Case
said that the bill and atlidavits filed by
Miller, showed that the railroad would
dsmage his lot, but while this was the
case he was not entitled TO an injunction
restraining the railroad company from so
Il, ing, but that his remedy was by suit
at law, that the Mason case was not in point
al q had no application TO this case.
Mr.. Mcclure says he tailed 10 understand
he r, ason assigned by the Court, why it
dsd TO application to the case, but with all
due respect to the Court he believes that
he cases are the same in principle.
Ia the Mason Ease.
ae had a ferry toll franchise established by
law. In the Noller case, he had a lot
equally established by law, both the fran
elise and lot are property, and the consti-
,Ltional provision makes no dis iuction
between the different kinds Of pr perty, or
how il is acquired.
In the Mason case the Harper's Ferry
Bridge Company was authorized by law 10
h,tl 10 br,tua in tha Dlara ~ abnnf
to build it. and to damage Mason's toll
frs nl hise, provided it paid TO Mason just
compensation for such damage.
In the Noller case the railroad company
was
XGiborized By Law TO COnstr"cs Its
RaiirOad
in front of Noller's lot, and TO damage the
same. provided it paid to NOller Just CON-
pensalion for such damage. Here again
the C ses are alike. The Supreme Court Of
Appeals enjuihed the Harper'S Ferry
Bridge Company from damaging Mason's
property (franchisel Until Just compen-
sa;ion for such damage was asCertained by
Il Jury, and then until it was paid to Mason.
The court OF Appeals in the syllabus OF
;hc case states that it decided. "EGpity
hes Jurisdiction 20 restrain the taking, or
uamsgiug of private property for public
use without Just compensation, even
,hUugh an action at law will lie Tor the re-
o, cry of damages in such cases, after the
pr, perty has been taken or damaged"
sfc Ciaims the Application of This Saw
% the Noller case entitled him to an in
0rrctrou, inasmuch that under provision
in the Constitution point in the syllabus
is law, and an inferior Court cannot quail
ify or limit its plain and unsm5iguous
residing. Besides, the same point 10 so
stated in the opinion Of the Court and IN
tirmed by the Judgment of the Court.
The Judges of the supreme Court must
be presumed TO know what they bold ana
how 10 state it in writing, ard had they
intended that this point should in any case
be qualified or limited, they would have
so said that if this was not the case the
syllabus of q case would be misleading and
of bur little value to the profession.