Kentucky-West Virginia Gas Co. v. Elk Horn Coal Corp. , 307 S.W.2d 776 ( 1957 )

CULLEN, Commissioner.

This case is related to that of Elk Horn Coal Corporation, v. Kentucky-West Virginia Gas Company, Ky., - S.W.2d -.

The latter case was one brought by the coal corporation to enjoin the gas company from constructing a gas pipe line across some 48 tracts of land on which the coal corporation holds mineral leases. The complaint in that action was not completely specific in describing the tracts involved, so the gas company, a few days after the complaint was filed, brought the instant action seeking to enjoin the coal company from interfering with the construction of the pipe line across one certain tract which the gas company maintained was not covered by the complaint in the other action. A restraining order was obtained.

The instant action was dismissed by the lower court on the ground that the tract involved was in fact embraced in the other action and v^as sufficiently described in the complaint in that action, so that the gas company was not entitled to maintain its separate action but could only assert its claim by way of compulsory counterclaim in the coal corporation’s action.

The gas company took an appeal from the judgment, but in the meantime, as a protective measure, filed a counterclaim in the coal corporation’s action, asserting its alleged rights in the one tract in question. That action was decided in the lower court in favor of the gas company, as to all of the tracts involved. The coal corporation appealed, and the judgment was affirmed in so far as the tract here in question is concerned. Elk Horn Coal Corporation v. Kentucky-West Virginia Gas Company, Ky., - S.W.2d -.

Obviously, the decision of the other case has rendered the instant case moot. Some concern is expressed by the gas company over possible liability on its bond for the restraining order, but since it has been determined in the other action that the gas company was entitled to construct its pipe line over the tract in question we see no basis for any award of damages on the bond.

The case being moot, the appeal is dismissed.