146 S.E. 522 | W. Va. | 1929
Defendant owns and operates an electric power plant and is a public service utility furnishing light and power to the inhabitants of the town of Sutton, and elsewhere. The operation *595 of its machinery has caused a vibration of the dwelling house of plaintiff's decedent situated 450 feet away from the generating plant. The principal and substantial damage to the house as a dwelling is that the vibrations make it uninhabitable as such preventing sleep and repose. Some damage of little consequence, resulted from alleged loosening of the joints, breaking of window panes, loosening of plaster, break of some water pipe, rattling of doors and shutters and loosening of a few slates of the roof, according to plaintiff's evidence. The house was erected in 1896 at a cost of $4,000.00, and the two lots on which erected originally cost $100.00 each. There had been very little repair to the house in thirty years. The original roofing, guttering, shutters and plastering remained intact. The house was "painted and fixed up" in 1920. The electric plant was originally owned and constructed by Central Utilities Company which completed it not later than New Year's day 1923, and operated the plant, furnishing light and power to the public until June 1, 1923, when it conveyed the plant and utility to West Virginia and Maryland Power Company, by deed dated June 1, 1923, and delivered July 11, 1923, which operated until it sold to defendant company, by deed dated August 1, 1923, and acknowledged September 28, 1923. It will be noted that the plant had been completed and operated for about eight months prior to the time defendant became owner and continued its operation. In September, 1926, the owner of the dwelling, Mrs. Byrne, died and her administrator instituted this suit to February Rules 1927.
The original declaration charged a total loss of the dwelling in the lifetime of Mrs. Byrne, caused by the vibrations from the plant, to the amount of $15,000.00, the entire value of the property; that the vibrations were caused by negligent operation of the plant in an unlawful manner; and that the plant was negligently and improperly constructed and the foundations thereof insufficient. By amendment the first count charged that defendant purchased the plant instead of constructing it, and thereafter continued its operation with notice of the vibrations and resultant damages to plaintiff's house; and another count was added whereby Central *596 Utilities Company was charged with negligent and improper construction of the plant, and that defendant purchased and continued operations with knowledge of defective construction.
There was no evidence to support the charge of faulty or improper construction or operation of the plant. On the other hand, the evidence is that it was properly constructed and operated, and no negligence can be imputed to defendant or its predecessors either in construction or operation. The evidence shows that the operation causes the vibrations, for when the machinery starts, and especially during the peak load hours, the vibrations begin and synchronize with the machinery, and when the machinery ceases, the vibrations cease. There is no conflict on the material issue involved, the only conflict being in the extent of damages, of which conflict the jury was the arbiter. Defendant frankly admits that the operation of the plant causes the vibrations due probably to the character of a substratum of earth which cannot be remedied; but says that it is not liable therefor; that if any one is liable its predecessors who built and operated the plant for eight months prior to its purchase are the ones. The evidence does not segregate the times at which the various items of damage occurred, except it is attempted to be shown that various items for damages occurred after the owner's death, but no attempt is made to say what amount of damages resulted therefrom; it is not shown what damage was done, if any, prior to defendant's purchase in September, 1923. The court instructed the jury that it could assess damages at the fair value of the property just prior to the beginning of the plant's operation by defendant company and after its operation, taking into consideration past and future vibrations and shakings and damages therefrom, excluding from such damages, if any, those caused by defendant's predecessor. Defendant moved to strike plaintiff's evidence in chief, and for a directed verdict. The jury found a verdict for plaintiff at $4,500.00; the court refused to set it aside and entered judgment. This writ of error followed.
There are many points of error stressed in argument and briefs. Logically, the first to be considered is the contention *597 that defendant company is not liable, for if that contention be well taken, the other assignments of error are moot. This contention is based on the facts, uncontroverted, that Central Utilities Company constructed the plant and began its operation not later than January 1, 1923, and continued its ownership and operation for about eight months when defendant purchased and continued the operation; therefore the right of action for permanent damages accrued to plaintiff against Central Utilities Company for all damages past and prospective, and no liability accrued to plaintiff against defendant for afterwards continuing the operation.
The parties have proceeded on the theory (the correct one) that the damages to the property are permanent, and not recurrent. The evidence sustains the theory of the declaration in that regard. The rule of ascertaining whether damages are permanent and recoverable in one action only, or whether recurrent and recoverable in successive suits is well stated inHargreaves v. Kimberly,
Plaintiff's counsel asserts that where a nuisance is begun by the erection of a plant and its operation, and the owner *599
and operator sells his plant to a vendee who continues the nuisance; then the injured party may sue either for the damages. That proposition is laid down in general terms in the annotator's introductory note to Roberts v. Georgia Railway Power Co., 14 A.L.R. 1089-1094. An inspection of the cases there discussed, and cited in plaintiff's brief, shows that they were cases of recurrent damages for which successive suits might be brought. They involved abatable nuisances. Such, for instance, is Central Consumers Co. v. Pinekert,
On the other hand, we have our case of Guinn v. Ohio RiverRy. Co.,
We are bound by the principle announced in Gwinn v. OhioRiver Ry Co., supra, accentuated by the decisions above cited, and hold that plaintiff's suit is properly against the corporation which erected the plant and operated it and who caused the permanent damages here complained of; and that defendant company is not liable for this permanent damage caused by another. The motion to direct a verdict for defendant should have been sustained.
Reversed; new trial awarded.