The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1905-11-27
ENlPT
CHARGES
DISMISSED

OuaSe Charles w. Iynch, II
special session of circuit court Mon.
dly dismissed the rule charging con-
tempt against employees of the
AMERICAN Telegraph & Telephone
Company in the controversy over
rights of way and trespass at
Bridgeport, the alleged contempt be-
ing disregard for an Injunction
issued by him upon application of
Melsina Wilkinson. After review
ing the case in detail, Judge Lynch
dismissed the rule, saying in part:
Two questions arose and were
discussed at the hearing, namely.
first whether the injunction order
was issued without jurisdiction, and
second, whether the defendants are
IN contempt, if they did knowingly
disregard the order, even if issued
without jurisdiction.
These two questions, though
closely related, will be considered in
the order stated.
1t is reasonably plain that the
sole purpose of the bill as presented
only seeks to restrain trespass to
real estate.
There is no dispute as to plain
tiff's title to the lot in question, but
there is no averment of insolvency
of any of the defendants, and no al
legation that the taking or damage
of plaintiffs lot is for public use
under the exercise of the right of
eminent domain without condemna-
tory proceedings under the provis-
ions of chapter AZ of the code, with
ont purchase or payment therefor.
nor can these facts be presumed OF
inferred from the bill On the con
trary to be relied on they must be
distinctly averred.
The bill, then, must be treated
as an application to restrain waste
or trespass, upon the lot of tho
plaintiff. 1t shows title, in her.
that the defendant company Is a
West Virginia corporation, has au-
fhorfty from the Town of Bridge
port to construct and maintain and
is constructing a telephone line or
Philadelphia avenue, one of tho
streets of said town, on which her
lots abut, that poles have been or
are about to be planted on the avenue
or near her property line that when
THE cross arms OF pieces are placed
5thereon, they will extend across the
property line onto her lot, that the
wires strung or to be strung thereon
are and will be suspended on and
over said lot, that the employees OF
the company have entered the lot OF
threatened to enter thereon and du"
or threatened to dig holes on the lo'
for the purpose of planting stay
poles thereon, on which to string
guy wires to support the poles in
the avenue, that thew have destroy
ed or threatened to destroy certain
shrubbery, trees and other property
thereon and have done or threaten
ed other acts to the damage and in
jury of her property and residence
and TO the prejudice of her rights
thereon.
"Thus. it may be repeated. the
bill is filed to restrain trespass to
the lot of the plaintiff. and is moi
drawn with the view of staying such
taking OF damage as is permissible
under the right of eminent domain
for public use until Just compensa-
ton shall be ascertained and paid in
the manner provided by law.
clad the bill been so drawn, no
doubt could have arisen as to the
right of the court to award the in
Junction but it has been repeatedly
and persistently held i'm this state
and many others, that a court of
equity win not and should not in
terfere by Injunction to restrain ?
mere naked. trespass to real estate
except where there is no doubt as to
tn plaintiffs title, as there is not
here where the trespasser is insolven'
or where the trespass contemplated
is destructive of the very substance
Of the realty. The cases so holding
are so numerous and frequent that
citations are unnecessary, and the
case at bar is so similar to many of
them, that there can be no doubt
but that it comes within the doctrine
50 declared.
The Injunction, then, was inn
properly awarded and for which
neither counsel preparing the bill
nor the JUDGE awarding the writ is
censurable, for it happens usually
and especially in cases of this char,
acter, where there is an unexpected
ana violent assault on property
- !. .LI.4 ,,o;tJ,l,,. i,O,,usel nor court