
    WHEELING.
    Freshwater vs. Pittsburgh, Wheeling and Kentucky R. R. Co. George Freshwater, Plaintiff and Appellee, against the Pittsburgh, Wheeling and Kentucky Railroad Company, Defendant and Appellant.
    Decided July 17th, 1873.
    Syllabus.
    1. In considering and determining an appeal from an order of a judge,, of a circuit court allowing an injunction, the bill being properly verified by tlio affidavit of the plaintiff, and the proceeding bejng altogether ex parte, the appellate court must talce and consider the allegations of the bill as being ¡irima facie true.
    2. Talcing the allegations of the bill as being prima facie true, the order of injunction appealed from, was properly made, sufficient equity appearing on the face of the bill.
    
      3. On an appeal from a preliminary order of injunction, made by a judge of a circuit court, in vacation, the appellate court will not consider any depositions in the cause taken by the appellant subsequent to the time such order of injunction took effect.
    Tbe case is stated in tbe opinion of tbe Court.
    
      Pendleton for Appellants.
    
      Lloyd for Appellee.
   HaymoND, President.

This is a bill of injunction filed by tbe Plaintiff against tbe Defendant in the Circuit Court of tbe county of Brooke.

The Plaintiff in his bill alleges substantially that be is tbe fee simple owner of a tract of 160 acres, more or less, situated in said county. That tbe Defendant is a corporation authorized by tbe law to construct a railroad in this State. That on tbe 3rd da3r of December 1869, tbe Defendadt served a notice on the Plaintiff, that application would be made for tbe appointment of commissioners to ascertain a just compensation to tbe Plaintiff, for the tract or parcel of land which tbe Defendant proposed to take and appropriate for tbe purpose of locating and constructing a railroad thereon, called tbe Panhandle Railroad. That on tbe 24th day of December 1869, the Defendant filed its wriften application in said Circuit Court for tbe appointment of commissioners for the purpose aforesaid. That among other things tbe application discribed tbe land of Plaintiff which Defendant proposed to take and appropriate for tbe purpose of its road. That afterwards such proceedings were bad in tbe matter of said application, that tbe Circuit Court appointed five disinterested freeholders of said county for tbe purpose aforesaid. That afterwards, tbe commissioners having been qualified according to law, entered upon tbe discharge of their duties as such, and on the-day of April 1870, after having viewed the land of Plaintiff, proposed to be appropriated by the Defendant for said railroad, ascertained that $499.40 would be a just compensation for so much of said land as is proposed to be taken by the Defendant, as well as for the damages to the residuemf the land beyond the peculiar benefits &c. That the commissioners made their report to said Circuit Court, signed and sealed by four of them, in due form. That afterwards, on the 30th day of September 1871, said Circuit Court confirmed the report of the commissioners, and ordered the same to be recorded in the chancery order book of the Court, which was accordingly done in due form. An official copy of the proceedings of the Circuit Court in the matter of condemnation is filed with ths bill. The bill further alleges, that the Defendant has failed and refused to pay the said sum of $499.40, with interest from the date of the report, or any part thereof, cither to the Plaintiff or into court. That on the 31st of May 1872, the Defendant entered upon the said land of Plaintiff with its agents and employees, and with horses, carts, plows &c. and commenced locating and constructing its railroad permanently thereon, and commenced to excavate and remove the soil and growing crops on said land, [and threatens that it will continue its unauthorizad and unlawful work, waste and» destruction of said land without making compensation to the Plaintiff therefor. And the Plaintiff avers and says, that the Defendant through its officers, agents and servants in so entering upon said premises and so digging up, excavating and removing the soil, and wasting and destroying his said premises for the purpose of constructing said railroad has exceeded its authority, and is doing said premises great injury, and if permitted to continue its unauthorized and unlawful acts aforesaid, and to carry out its unlawful purposes as it threatens to do, it will do great and irreparable injury to his premises and estate, which cannot be adequately compensated in damages. The bill prays that an injunction be awarded, enjoining the Defendant from farther occupying or entering upon said premises, and carrying on the work for the construction of the said railroad thereon by its officers, agents or employees, and that the Defendant be restrained fiom entering upon any part-of said premises by its officers, agents, servants or employees and doing any acts to the injury and damage of the Plaintiff, which .it threatens, until the Defendant pays to Plaintiff or .into court the said sum of $499.40 reported by the commissioners as the just compensation for the Plaintiffs land so appropriated, or sought to be appropriated, for the purpose of said railroad. And that unless the Defendant pays to Plaintiff the said sum with interest as aforesaid within twelve months from and after the date of the order of the Circuit Court requiring the said report to be recorded, then that the Defendant be perpetually enjoined. The bill is verified by the affidavit of Plaintiff. Upon this bill the Judge of the Circuit Court of Brooke county, on the 24th day of June 1872, awarded an injunction as prayed forj until other orders, the Plaintiff to first give bond in sum of $200, with security, conditioned for the payment of any costs or damages resulting from the order. Bond and security seems to have been given according to the order granting the injunction.

From the order of the Judge granting the injunction an appeal has been taken to this Court.

In considering and determining the questions arising in this cause, the bill being verified by affidavit, we arc compelled to regard the allegations contained therein as being prima facie true. The injunction was awarded by the Judge in vacation, without notice to the Defendant, and the proceeding was altogether ex parte. Taking the allegations of the bill as being prima facie true, we think the bill shews on its face sufficient equity to authorize the granting of the injunction as it was allowed by the Judge of the Circuit Court.

This Court, in considering the appeal from the order granting the injunction, cannot consider any deposition in the cause taken by tbe Appellant subsequent to tbc time when' tlie order of injunction took effect.

Nor these reasons the order of the Judge of the Circuit Court of Brooke county, allowing the Plaintiff the injunction herein named, must be affirmed, and the Ap-pellee recover his costs in this Court, and $30 damages against the Appellant; but this order of affirmance is without prejudice to the Appellant’s right to appeal according to law, from any order or decree which was made in the causa.by the Judge of the Circuit Court of Brooke county in vacation, or by said Circuit Court after the order granting said injunction, or which may hereafter be made therein ; and also without prej udice to any right of the Appellant hereafter to move to dissolve said injunction, or to-take such other proceedings in the cause as are in accordance with the principles and rules of a court of equity.

And the cause must be remanded to the Circuit Court of Brooke county, for further proceedings therein to be had according to the rules governing courts of equity.

HoeeMAN, Moore and Paule, Judges, concur in the foregoing opinion.  