Opinion
No. 8019
Submitted February 19, 1935.
Decided March 16, 1935.
Appeal from Circuit Court, Ohio County.
Suit by Carl S. Winter and others against the State Road Commission of West Virginia and others. From an order dissolving a temporary injunction, plaintiffs appeal.
Dismissed.
McKee McKee, for appellants.
Homer A. Holt, Attorney General, and R. Dennis Steed, Assistant Attorney General, for appellees.
This is a suit by abutting owners to enjoin the improvement of a public highway.
The bill alleges that plaintiffs are joint owners of a tract of land in Ohio County which includes a part of the National Road right of way; that defendant, State Road Commission, is constructing a new channel for Little Wheeling Creek through a portion of the original right of way, within plaintiffs' boundary lines, abandoned by the public authorities in a relocation of the highway in 1915; and that the change in the channel of water course will not only constitute an invasion of the abandoned right of way now claimed by plaintiffs, but will intercept ingress and egress to and from their premises and expose the same to floods and natural erosion by the waters of the stream. Defendants deny that any of the original right of way has been abandoned, or that the proposed improvement will invade the plaintiffs' boundaries.
Plaintiffs appealed from an order dissolving a preliminary injunction. No supersedeas having been requested or awarded, the work sought to be enjoined has been completed, pending the appeal, for which reason, defendants now move its dismissal. The motion will be sustained. "Where an appeal is taken from an order dissolving or denying a preliminary injunction or dismissing the bill, and, pending the appeal, the act sought to be restrained has been accomplished, that fact, upon being brought to the attention of the reviewing court by motion supported by affidavit affords sufficient ground for dismissing the appeal, the dismissal being without prejudice." High on Injunctions, 4th Ed., section 1701-A. The suit is a pure bill of injunction, having no other purpose than to enjoin the change in the channel of Little Wheeling Creek, which has been accomplished. There is also a dispute of boundary lines.
The appeal is, therefore, dismissed without prejudice.
Dismissed.