87 W. Va. 548 | W. Va. | 1921
Plaintiffs brought this -suit to recover damages to their real estate situate in the city of Pairmont resulting from the construction and operation of the ■ defendant’s railroad in the street in front of the same. Upon the trial of the ease, after the plaintiffs had offered ail of their evidence, the court, upon motion of the defendant, directed a verdict in its favor, and
The declaration is in three couunts, in each of which it is alleged that the plaintiffs are the owners of a valuable piece of real estate situate on Guffy Street, in the city of Fairmont, and that they own the fee in the said Guffey street to the center thereof, the city being the owner of an easement in said street for the purposes for which public streets are ordinarily used; that the defendant constructed in said Guffey street, in front of the property of the plaintiffs, a large fill or embankment the entire width of said Guffey street, to a height of from five to ten feet, the effect of which was to raise the street that distance above the plaintiff’s property and the house constructed thereon with reference to the former grade, and that by reason thereof the plaintiffs’ means of access to their property has been practically destroyed, and that its value has been greatly decreased. • ■
The second count contains very much the same averments as the first, except the averment is that the Jill extends, not only in front of the plaintiffs’ property, but along Guffey street between cross streets, and destroyed Guffey street as a public highway, making access to plaintiffs’ property very difficult, if. not impossible.
The third count avers, in addition to the matters above referred to, that upon the fill so constructed the defendant laid its railroad tracks and operated thereover trains, from which sparks are thrown exposing the plaintiff’s property to danger from lire; that the house has been greatly jarred and shaken by reason of the operation of said trains, and that dust, cinders and smoke have been cast upon the property, from all of which causes it has been very seriously damaged.
A demurrer was interposed to the declaration and to each count. The court sustained the demurrer to the second and third counts, but overruled it as to the first count, and the plaintiffs assign as error the action of the court in sustaining the defendant’s demurrer to the second and third counts of their declaration. The first count, to which the demurrer was overruled, and the second count, to which the demurrer was sus
On the trial of the case upon the first count of the declaration the plaintiffs introduced evidence to show that by reason of the making of the fill in the street in front of their house a part thereof was made practically uninhabitable, and that access to the property from any of the public streets was made very difficult, and that on this account the value of the property has been substantially depreciated. Many witnesses testify along this line. They then introduced the will of Elizabeth Carpenter, under which the" plaintiffs obtained their title to the property, and it was upon construction of the devise contained in this will that the motion to direct a verdict was sustained, the holding of the circuit court being that the plaintiffs did not have such an estate in the property as would justify any recovery in their favor upon the -evidence introduced showing entire damages to the real estate. The provision of the will disposing of this property is as follows: “I give and devise to my son, Boyers Boyce, my daughters Yiola Curry and Cassie Eortney, and to my grandson Danzel Hayhurst, all of the property where I now live, situate on Guffey Street in the first ward of the city of Fairmont, conveyed to me by Yiola Hayhurst and husband, in the following manner and proportion, that is to say: to the said Boyers Boyce the use and control and benefit of the three basement rooms; to the said Yiola Curry those two certain rooms in said building next to the property owned by R. E. Harr, and on the first floor, and the three rooms immediately over said two rooms; to said Cassie Fortney the four rooms on the first floor on the lower side of said building, the two rooms over said four rooms, and the attic; to the said Danzel Hajdiurst, the two remaining rooms on the first floor at the rear of said building; they and each of them to have the use, control and benefit of said. portions of said house during the period of their natural lives, respectively; and it is my desire and will that said house shall be so divided between them until, for any reason, it may become necessary to rebuild upon the lot where the same stands, in and after which event, I devise and give the lot on which said house stands to said Boyers B'oyce, Yiola Curry, Cassie
The view we take of this case renders it immaterial at this time to determine whether the plaintiffs are the owners of a fee simple estate in this property, or hold it in the manner contended for by the defendant, for in either event we are of opinion that the plaintiffs, under the circumstances shown here, are entitled to recover permanent and entire damages to the estate, and that the court should not have excluded their evidence and directed the verdict complained of. It will be observed from the provision of the will above quoted, if it is given literal effect, that each of the plaintiffs are devised particular rooms in the house, and that it is provided further that
Our conclusion is, therefore, to reverse the judgment of the circuit court of Marion county, set aside the verdict of the jury, and remand the case for a new trial.
Reversed •and remanded.