43 W. Va. 539 | W. Va. | 1897
This was an action of trespass on the case by M. 0. Clay and Amanda Clay, his wife, against the city of St. Albans, to recover damages for injury caused by the flow of surface water upon a lot occupied by them, resulting in judgment against the city, which sued out this writ of error.
The declaration is attacked on demurrer because it fails to plead the title of the plaintiffs, — not showing whether they claim in fee, or for life or years, in present or future estate. It, is plain that a declaration must have legal certainty in all material elements. It must tell wherein and how the plaintiff has been injured; if in property, it must tell what property right has been invaded. This is but the common, basic rule of the law of pleading applicable to declarations and other pleadings, “that the pleadings must show title,” — not title in the common-speech meaning (that is, deeds or
As to the point that the declaration does not aver that the town collected surface water and cast it on the lot: It does sufficiently do so. It is clear that the town has a right to get rid of surface water, but it must not collect it in bodies, and cast it on property, changing its former flow'. This declaration says that “by means of negligence and improper construction of ditches, etc., great bodies of surface water, changed in course, were turned and cast upon” the lot.
Counsel next say that there is a variance between declaration and proof. The declaration goes for permanent damages to the freehold, and alleges a freehold estate in the wife, whereas the evidence shows a deed to a trustee to hold upon trust to permit Mrs. Olay to hold, use, and occupy the lot for her own separate use, free from claims or debts of her husband, and to convey it as she might by will or writing direct, and, on failure to do so direct, then to convey to her heirs. The trustee holds the legal title; the wife, the full use and benefit. The deed antedates the Code of 1868, which contained our first separate estate act; but under priciples of courts of equity without the help of that statute, it is her separate estate under such a deed. West v. West, 3 Rand. 373; Lewis v. Adams, 6 Leigh, 320; Code 1868, c. 66, s. 1. At first blush it would seem to be a variance, but is it so for the purposes of this suit? This depends on the question whether the plaintiffs can maintain this action; for, if so, there is no available variance. They could surely recover for disturbance of possession, mere possession being sufficient to support trespass. And, even in states where the husband and wife cannot join in an action for injury to her separate estate, they may, on their common possession, recover for injury to that possession, though not for injury to the very property itself, — the corpus or inheritance. Railway Co. v.
I think there is no tenable objection to the evidence of McOomas giving his opinion as to damage. Jordan v. City of Benwood, 42 W. Va. 312 (26 S. E. 266).
Plaintiffs’ instructions: The omission of the words “for public use” in No. 1, instructing that property can neither be taken nor damaged without just compensation, is very plainly immaterial. There was no hint or shadow of a taking or damaging for private use before the jury. TIow could a sensible jury possibly be misled by it? It would apply to the case before the court. Besides, property cannot be taken either for private or public use without compensation. Instruction 2 tells the jury that “if the injury was caused by the natural flow of the water-being changed and cast upon plaintiff’s property by the cuttings, or extending drains or ditches, or by filling in the street, or by any or all such causes combined, tire defendant is liable.” This instruction is ambiguous. For what is a mere change of the flow of surface water incident to the proper work of improvement, even though it do injury to a land owner, if it still spreads out as surface water naturally does, a municipal corporation is not liable in damages; but it cannot collect it in a body, and as such cast it upon land, so as to furrow it out and create or enlarge drain courses through it. You cannot make such
As to the evidence, as the case may be retried it is improper for us to pass on its effect; but, in view of certain evidence bearing on the condition of the drains, I will advert to the law seeming to be pertinent. Our Code gives municipal corporations power to construct drains and gutters. They may or may not, as they choose, exercise this power in any street, as the right to elect to do so or not to do so is a matter of discretion, quasi judicial; but when once the corporation decides to do so, and constructs sewers or drains and gutters, the duty has become merely ministerial, and the town bound to keep, them in fairly good condition to carry off the water ordinarily and naturally coming into the gutter or sewer in the section where the the town is, so as not to overflow lot owners. The town is not bound for great and unusual floods. If there comes a cloudburst or great rainfall, out of the ordinary experience, and it is too great for the capacity of the drain or gutter, or if it bring down rock, drift, sand, or other debris, choking up the drain, and overflowing, the town is not liable. It is the unexpected, — out of the ordinary course of nature. But if the city allows those obstructions to remain, — if it allows its drains or gutters to clog up,— and damage ensue, it is liable. That is no more than the application of the rule above stated, that the corporation must, not in any manner collect or gather surface water in a body, by ditches or drains or gutters, and cast it on a lot owner. If it makes a drain or gutter, it necessarily collects water before then spreading, and it must carry it off*. Thht is only negligence. Elliott, Roads & S. 363; Jones, Neg. Mim. Corp. § 144; 1 Beach, Pub. Corp. §§ 764, 767; Hitchins v. Mayor, etc., 68 Md. 100; Gilluly v.
Reversed.