Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1889-05-19
OF INTEREST TO MANUFACTURERS
The Wheeling Natural Gas Company Wins
the Top Mil Case
SUMMARY OF THB DECISION.

ursl Gas Company, the plaintiffs seeking
mandatory and lprohibitory ipjuuc ION,
and also compensation for damages alleged
20 have been sustained at the hands of the
defendants. The case was in the nature
Of a test, aud The questions at issue involved
contracts amounting to probably $500, 600
per annum.
In it's contracts with its patrons, the
Wheeling Natural Gas Company provide,
in substance tha. al any time, through
shortage Of gao by reason Of the failure of
wells or from other causes. the Gas Com
pany should have the right to regulate and
restrict the use of gas By consumers. Gas
began 10 fail along IN the summer and au-
tumn OF 1887, and the Gas Company pro-
cetded to regulate the supply. In pursu-
ance of this policy, about the close of lest
wear, 1t one day sent telephone message
to the Top Mill, asking that part OF the
fuel supply be cut off. This the Mill
Company failed to do, and man was sent
up for that purpose He asked that the
/
being refused, the ClNpaDy gave the Top
Mill Company six days 70 comply with
the regulating provision, aud at the end OF
that time, "a the Company still refused 10
allow any diminutiOn of its supply, the
Gas Company shut of TIE gss sltOg
and refused to grant any further supply
The Top Mill Company en- brought Il
suit in equity before Judge Jacob, asking
a mandatory injunction, compelling the
Gas Company TO again turn on the gas,
and also prohib.tory injunction, 'estrain-
ing them from again cutting off the supply.
This was argued on demurrer to the bill,
in vacation, before Judge Jacob, who =
fused TO issue the mandatory Injunction,
but continued the bill for further hearing,
and the Gas Company fled it's answer. In
addition to asking for the iujuuctions the
bill mad set up dam .ges in considerable
amount, and this Judee PAUL was called
upon to decide.
The points involved were finally argued
before Judge PAUL at recent special
session of Court, and Yesterday decision
was rendered, as has been stated. In ar
guiDg the case, counsel for the Gas COmpI-
ny to5k the ground that the Nail COmpA-
ny had an adequate remedy at Law, and
that the proceeding in equity was improp-
er.
Ia his decision, Judge Paul. said it frs
/ became necessary to determine whether
/ the complainant's remedy at law Was in
adequate, as hsd been alleged He said:
THE compliments injury, exclusive OF
the expense of making the connections and
appliances necessary TOR the use of Lstural
gas, and then preparing its works again for
the use OF coal, after the gas was shut of,
consists solely in the increased cost of la
Dor and fuel resulting from the use of coal
Instead of gas for its manufacturing pur-
plses And the evidence in the case coz
clueively shows tbs, this increased cost
can be accurately sscsrtained at the end Of
any period of six months, if not at shorter
intervals of time, although it may not be
capable of entertainment in advance.
''But, il is claimed, that as this in
creased cost cannot be ascsr,ained IN ad'
vance, equity should take Jurisdiction in
order to avoid a multiplicity of suits."
After citing authorities, the Court ssid:
1--WE have never heard it claimed that
equity will entertain an action upon
contract requiring the payment of money,
daily, monthly or yearly. Yet in such a
case an action would accrue at each OF
such periods, and there would thus be,
prospectively, a great multiplicity Of nc
tions."
Proceeding, the Court said:
ST is not claimed that natural gas, ss
fuel, Is indispensable 10 its business, or
that coal, which can be obtained il this
CITY in abundance, will not answer It's pur-
pose Just as we'll, it's only claim being that
by the use OF gss as fuel, II has been ena-
bie1 in the past, and would be enabled IN
the future, 10 get ont It's large proouct az
much less expense. Admitting, however,
that compliments remedy at law Is mad
eouate. because of its inability to estimate
its damages in advance, and the conse-
ouent necessity it would be under OF
bringing successive actions, there are other
clements, conditions and incidents which
must be shown TO exist before It's right to
decree for specific performances is COM
plete."
Authorities we're cited upon these con-
di,ions. conclusions and deductions drawn,
and then the Court, upon the question OF
partial failure of the gas supply, said:
"Whether there WAS in fact partial
failure of the supply Of gas prior toi the
Oh day of January, 1888, or whether the
Gas Company wrOngfully cut of the com
plainants supply on that date, is wholly i'm
material so TAR az this provision OF the con-
trsct is concerned, as no decree could be
entered in any event requiring the Gas
Company to specifically perform Its con-
tract without reserving to 1t the night 10
regulate the amount to be furnished as pro-
vided for therein; and no decree which
contained that reservation could be execu-
ted: because every violation thereof would
REQUIRE long and tedious investigation
in order to ascertain ~ whether
there mad in fact been a par
tial failure of supply of gas, and (2) the
manner in which the Gas Company was
exercising its right to regulate the amount
furnished the complainant before 1t could
he ascertsined whether the requirements
of the decree had really been violated. "
fCssswell VS.. Gibbs, 80 Wis 33l
eFor these and other considerations,
which might be urged, were it deemed
necessary. am Of the opinion that the
defendants, the Wheeling Natural Gas
Company. should not be required to spe-
officially perform its contract with the COM
plainant."
Hubbard and Russell for plaintiff; Do
veneer and Clark for defense.