82 W. Va. 1 | W. Va. | 1918
The action is in case for the ■alleged unlawful entry by defendant upon plaintiffs’ land adjoining land owned by it, and -doing damages thereto by mailing deep cuts and excavations "thereon and for removing the lateral support thereto to which "they were lawfully entitled.
There was a verdict and judgment for plaintiffs for $5,- • 375.00, to which judgment the defendant sued out the present writ of error.
Upon the trial plaintiffs proved as a part of their case the récord of the verdict and judgment in a proceeding in condemnation against them whereby defendant, as successor, ac- • quired its right and title to the adjoining land, and wherein the original and amended petition with survey and plat exhibited therewith showing by metes and bounds the location .and boundary of the land adjudged to petitioner in said proceedings, and wherein the damages recovered by plaintiffs .herein for the 0.97 acres taken was $8,900.00, and which was •actually paid by petitioner as so adjudged.
The two principal questions now presented, and which so far as we can see are inclusive and conclusive of all other questions involved here are: First, whether the land so eon-
As described in the amended petition and plat filed therewith and the judgment in the condemnation proceedings the land condemned and transferred thereby to the railway company was as follows: “All of that certain parcel of land situate and lying in the District of Union Independent, in the City óf Fairmont, in the County of Marion and State of West Virginia, and more particularly described as follows, to-wit: Beginning at Sta. 277-92.9 the point where ;the located center line of the Pricketts Branch of the Buckhannon and Northern Railroad crosses the line between John Fleming et al and Geo. Lilley; thence with said line S. 54° 30' W. 23 feet, more or less, to a comer to John Fleming, et al and Geo. Lilley, in the line of Thomas Rubble; thence with the line between John Fleming et al and Thomas Rubble, John Phillips and T. Wilber Hennen, S. 35° 53' W. 280 feet, more or less, to a corner to John Fleming et al and T. Wilber Hennen; thence with the line between said Fleming et al, and Hennen, N. 66° 36' W. 124 feet, more or less, to the center of Merchant Street; thence with the center line of Merchant St; S. 21° 27' W. 40 feet to the line of the Buckhannon and Northern Railroad Co. and C. E. Harden; thence with said line S. 66° 36' E. 259.8 feet, more or less, to the West side of Diamond .Street; thence with the West side of Diamond St. N. 31° 41',E. 216 feet and N. 40° 12' E. 61 feet, more or less, to the line of Geo. Lilley; extended; thence with said line N. 50° 30' W. 105 feet, more or less, to the place of beginning, containing .97 acres more or less” and as described in the amended, plat filed in lieu of the map filed with the original petition.
On the, first of the questions presented the contention of the plaintiffs is that regardless of the literal calls in the petition, plat and judgment of condemnation; defendant was lim
It is not contended that the lines or boundaries of Diamond Street, as laid down on the plat filed in the condemnation suit, are coincident with the lines of Diamond Street on the plat or plan of the proposed addition made by Prickett, surveyor, in 1903. Indeed, it is plainly apparent from the calls for courses and distances, and from the evidence of the surveyors and of other witnesses that they are not, except for the distance of some sixty feet at the southerly end of said street bounding a cul-de-sac therein, and for which distance the call is S. 40° 12' W. or N. 40° 12' E. 61 feet more or less; thence S. 31° 41' W. or N. 31° 41' E. 216 feet to the Harden line, showing an angle in the street, whereas the corresponding west line of Diamond Street, as laid down on the plat of said Prickett made in 1903, is a straight line run substantially on the first call, and the land in controversy lies between these two divergent’lines representing the western line of Diamond Street as called for in the two plats, and bounding the triangular plot in dispute, covering about one tenth of an acre.
That the defendant is entitled to hold the land and all the land adjudged to it, or its predecessor, in the condemnation suit on the principle of res adjudicata is elementary law, and that this principle is applicable to final judgment in condemnation has been distinctly decided by this court. B. & O. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 812; Blake v.
It follows as a necessary sequence that all maps or plats and all opinion evidence of witnesses admitted oyer defendant’s objections for the purpose or calculated to prove title or to impeach the verity of said judgment of condemnation or to A7ary or change the lines or location of the land condemned from those called for in the judgment of .condemnation, were erroneously admitted, and should he, rejected qn the new trial to be awarded; and if said plats.are proper for any purpose they should be limited strictly to • that purpose, and not allowed to influence the jury on any other point in issue. Such opinion evidence of a surveyor or other witness
The second question, relating to damages to the residue of plaintiffs’ land and for lateral support is fraught with more difficulty. The evidence shows that defendant made deep excavations up to the western line of said Diamond Street bounding the land taken in condemnation, and ranging in depth from a few feet to twenty seven feet, thereby removing the lateral support to plaintiffs’ adjoining land, and that as a result erosion had set in, and large quantities of earth had fallen out of said Diamond Street into said excavations, thereby injuring or destroying Diamond Street, and also doing damage to the residue of plaintiffs’ land and lots abutting thereon, and for which they seek to be indemnified.
The position of defendant’s counsel is that all such consequential damages were necessarily covered and included in the judgment of condemnation, and that as it is not alleged or proven that such consequential damages were inflicted by any unskillful or negligent manner in the construction of said railroad or other improvements, or in the operations thereof over the lands condemned, and whereby plaintiffs were damaged, good cause of action is not shown. Neither the petition for condemnation nor any surface or profile map exhibited therewith shows the particular use to which the petitioner proposed, to appropriate said land nor the extent'of any proposed excavation thereon, except that the petition does allege that it was intended to use the same for the” purpose of constructing, maintaining; and operating its said railroad, for side • tracks, siding switches, stations and freight facilities, and for other necessary- purposes connected with the business of said railroad. As the land taken and the residue thereof was situated on a hill side, the" part not taken lying above that taken, and all sloping westward toward the river, it may be reasonably assumed that the -plan and purpose of the railway necessarily contemplated the grading of -the 'larid and the making of some excavations thereon, but can ■we- say- that such use and injury--to'-the lateral • support
' We do not think so. Certainly not unless the proceedings disclosed such a purpose, or as in Traction Co. v. Windom, 78 W. Va. 390, the work on the land taken has been done at the time the damages are assessed, and the purpose thereby disclosed. And we decided in Buckhannon & Northern Railroad Co. v. Great Scott Coal & Coke Co., 75 W. Va. 423, point 6 of the syllabus, that damages resulting to the residue of the land not taken, from trespasses thereon or from the negligent or unskillful manner of doing the proposed work, are not recoverable in condemnation, but constitute the basis of a separate and independent action. Depriving the owner of lateral support not disclosed in the proceedings and causing his adjoining land to fall in, constitutes a trespass and a new invasion of his right, damages for which is compensable in a new and independent cause of action and as not being covered by the damages reasonably contemplated in the original tailing of his land. True, as shown by Mr. Lewis, in 2 Lewis on Eminent Domain, (3rd ed.) chapter 24, the weight of authority in point of number of decisions at least seems to be against these views, but we are disposed to agree with him that in point of reason as well as authority the rule should be as indicated. He says, in section 824, of said chapter: “It not infrequently happens that, in the construction or improvement of highways aiid railroads, excavations áre made so that the soil of the adjoining owner gives away and slides into the excavation. Some eases, and perhaps a majority, hold that there can be no recovery in such cases. These cases proceed upon the theory that the right so to undermine the soil at any time when necessary to the proper constructing o’f the works was acquired and paid for at the time of the original taking. On 'the other hand, there are a number of eases which hold that, where land is taken for public use, che right' of sripport for the adjoining soil i's not taken, biit the ‘Oivner "rethink' such right aiid the works must be constructed so as not to interfere with that fight', hr further compensation iniM’íiemáde. ’'Fóf fedsoit’s already stated"in ¿'prior'section,
Enough has been said to show the propriety or impropriety-
Reversed and remanded for new trial.