92 W. Va. 445 | W. Va. | 1922
The judgment for $15,500.00,-complained of on this writ of error, was recovered by a farmer, owning and residing upon a tract of land containing about 137.5 acres, against a corporation owning and operating a large industrial plant, situated upon a 160-acre tract of land, owned by it, in the reduction of zinc ores, upon the ground of injury to the agricultural, residential and market values of the farm, by^ reason of chemical deposits upon it from fumes, gases, and dust
Some of the counts in the plaintiff’s declaration are so framed as to claim right of recovery upon the theory of recurrent or temporary damages, while others are so drawn as to assert right of recovery of permanent damages. The case was tried upon the theory of permanent damages. In the course of the trial, the counts for temporary damages were ignored by the parties as well as the court. A plea of not guilty was entered in May, 1920, and 13 special pleas of the statute of limitations, in September, 1920. No demurrer seems to have been interposed to the declaration or any of its counts.
The action was commenced March 7, 1919. According to the contention of the defendant, the injury, if any, dates back in its inception, to the commencement of the operation of the plant, or at least, to a time shortly thereafter, when the dust, smoke and gases first affected the plaintiff’s land, and that, therefore, the cause of action arose more than five years before the institution of the suit, and is barred by the statute of limitations. The plaintiff insists that the statute began to run from the date on which the injury to the land became appreciable and noticeable, about the year 1915.
A part of the plant was completed and put into operation m 1911 and additional units were added from time to time. There are ten blocks of furnaces, the first one of which was installed and put into operation in March, 1911 and, the last one, “October 28, 1915. In the meantime, at various dates,
Notwithstanding the acquiescence of the parties and the court, in the theory upon which the case was tried and disposed of, it is necessary to determine and define, the nature of the cause of action, in respect of the application of the statute of limitations. Willingness of the parties to this action, te forego such an inquiry and by agreement to adjust their controversy, upon the theory of original and permanent damages, does not justify the adoption of a rule that will operate unjustly, in its application to other controversies of the same-' kind. An erroneous decision respecting this question, in this-cause, would be a precedent which the court hereafter would be required to follow, however unjustly it might operate, or to overrule. In this connection, no force or effect can be-allowed the implied agreement of the parties as to the nature-of -the cause of action. There was no such agreement at the date of commencement thereof. At that time, it stood unaffected by any agreement either expressed or implied. The date of commencement of the action, not that of the appearance and entry of pleas nor of the agreement as to the basis of trial, is one of controlling elements in the inquiry as to-whether or not the right of action was barred. Going back
An apparent contradiction of this conclusion may be found in certain cases, but it will be found, upon examination, to be only apparent. Public and quasi public corporations, in the exercise of their rightful powers sometimes exceed the rights obtained by them, or inflict damages by the negligent exercise thereof. In as much as their functions and operations cannot be enjoined, because of their public nature, and, under the power of eminent domain, they could havei acquired right to do the things complained of, if reasonably necessary to their operations, they as well as the injured parties may elect to treat the injury and damages in such cases, as permanent, even though in law, they may not be. Ridley v. Seabord & R. R. Co., 118 N. C. 996; White v. N. W. N. C. R. Co., 113 N. C. 610; Ill. Cen. R. Co. v. Grabill, 50 Ill. 241; 8 Am. & Eng. Ency. L. 687. This principle was adverted to, but not applied, in a controversy between private persons, in Hargreaves v. Kimberly, 26 W. Va. 787; but, in that case, it was deduced from decisions in which the wrong doers were corporations of the class here referred to. It was again mentioned as an established rule in Watts v. Norfolk & Western
An important factor in the determination of the character of an -injury to real property and the nature of the damages resulting from it is the character of the injury itself. Though continuous, it may be slight and readily compensable in damages, as well as remediable by the injured party. Though of considerable magnitude, it may not be continuous. There may be a continuing cause without continuous injury. The latter may be intermittent and recurrent. It may involve a trespass or there may be injury without an actual trespass. Upon such an injury as we have here, under the multitudinous facts and circumstances disclosed by the hundreds of cases that have arisen, there have been many things to consider. It would be impossible to review all of the decisions bearing upon the question of the application of the statute or to classify them. There are some general propositions, however, that can be asserted with safety, as to the requirements of a cause of action for original and permanent damages. The injury must be constant and continuous, not occasional, intermittent or recurrent. On this point, Judge BraNNON, speaking for this court, in Henry v. Ohio River R. R. Co., 40 W. Va. 244, said: “Now, this embankment itself has the element of permanency, it is true, and that far complies with the rule warranting recovery of past and future damages in one action, but it does not necessarily per se injure the plaintiff’s property in respect to the mode of injury charged; that is overflow. That happens only when rains or snows come.” See also Eells v. Chesapeake & Ohio Railway Co., 49 W. Va.
There is no ground upon which an individual or a purely private corporation can be accorded right to maintain and continue in force a business, structure or other agency working injury to the property of another, in such manner and to such extent as to constitute a private nuisance, if the injury so wrought is such as impairs or destroys the enjoyment or value of the property, or is deemed by the law to be irreparable and not compensable in damages. Sullivan v. Jones, etc. Steel Co., 208 Pa. St. 540; Town of Bristol v. Palmer, 83 Vt. 54; Campbell v. Hayman, 63 N. Y. 568; Waters v. McElroy, 151 Pa., 549; Hennessy v. Carmony, 50 N. J. Eq. 616; American Smelting and, Ref. Co. v. Godfrey, 89 C. C. A. 139; McCleery v. Highland Boy Gold Min. Co., 140 Fed. 951; Arizona Copper Co. v. Gillespie, 100 Pac. 465; Woodruff v. North Bloomingfield Gravel Min. Co., 9 Sawy. 441; Wente v. Commonwealth Fuel Co., 232 Ill. 526; Broadbent v. Imperial Gas Co., 7 De G. M. & G. 436; Stratton & T. Co. v. Mariwether, 150 Ky. 363.
In addition to the right of direct judicial abatement, the
The distinction between damage to private property for public use and damage to it by a private nuisance, seems to be denied, in Virginia Hot Springs Co. v. McCrary, 106 Va. 461, 471, because the decisions in cases involving damage for public use do not in terms place the permanency of the cause of the injury upon the right of eminent domain. This position is, in our opinion, altogether untenable. In a great many of those decisions, it will be found, that the courts have laid particular stress upon the absolute right of a public corporation to continue the cause of injury, if necessary to the performance of its public functions, and denied power in the courts, to restrain their operations, on account of the great public interests dependent upon them. In the opinion in the case above referred to, which is strongly invoked in the argument submitted for the plaintiff in error, the decisions in actions against public corporations are very extensively relied upon. In addition thereto, general propositions asserted in text books are invoked without any analysis of the precedents upon which they are based and which, when examined, are found in almost, if not every, instance to be eases of damage to private property for public use. Most of those underlying the text of sec. 210 of Gould on Waters, quoted in that opinion, are that class of cases. A few of them involve flowage of land by mill dams erected in streams,
The injury in respect of which this action was brought, is consequential and flows from a purely private nuisance. There has been no trespass upon the plaintiff’s lands. The. furnaces and business working the injury are located and conducted upon the defendant’s own land. It is clearly within its power to abate the nuisance, by an alteration of its furnaces or methods of operation, or by cessation of the operations working the injury, and it is likewise abatable by judicial process. Hence, it lacks the element of permanency, essential to right of recovery of permanent damages measured by depreciation in the value of the land. Nothing disclosed by the record, except the conduct of the parties in the adoption of the theory of permanent injury, could give it such status; and that can have no such effect for reasons already indicated. It may be added that the rules and principles adopted for determination of the character of causes of action are founded upon the experience of centuries, as well as the accumulated wisdom of ages. Their chief purpose is formation of basis upon which just and equitable results may be worked out in litigation, when the parties are unable or un
Our conclusion is that the record presents no cause of action for permanent damages and that the case has been tried and disposed of upon an altogether erroneous and untenable basis. As all of the rulings are predicated on that basis and the new trial will have to be conducted upon an entirely different one, there is no occasion to review the rulings specifically complained of.
The judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and remanded.