61 W. Va. 604 | W. Va. | 1907
A judgment for $986.00, rendered by the circuit court of Mercer county, against the City -of Bluefield, in favor of Eliza J. Godbey, for damages to .her house and lot, occasioned by filling the street in front of it, to the extent of about four feet, is the subject matter of this writ of error; and the complaint is that the court <3rred in admitting evidence, giving instructions and refusing to set aside the verdict, for insufficiency of evidence.
To prove the public character of the street, the raising of which is alleged to have wrought injury to the plaintiff's premises, the testimony of one F. W. Atkinson and others to the effect that, at the time the fill was made, he was the street commissioner of said city, by previous appointment of its common council, and, as such officer, had made the change in the street or caused it to be made, was admitted over the objection of the defendant. The ground of the exception to
Such evidence was admitted in Campbell v. City of Elkins, 58 W. Va. 308, and Parrish v. City of Huntington. 57 W. Va. 286, but, as it went in without objection, there was no occasion for determining the question now raised. The opinion in the former case, however, contains the following observation, concerning the decision in Talbott v. King, 32 W. Va. 6, in which the main proposition was applied: “The inquiry does not go to the extent of the directions under which he (the road surveyor) worked or his authority as an overseer. These inquiries seem to have been regarded as unnecessary in view of the presumption in favor of the regularity of the acts of public officers.” No doubt the view that strict proof of appointment was dispensed with on the ground of reputation as to official character or notoriety of action would have been more accurate. Wigmore on Evidence, section 1228, says: “There has been much difference of practice in regard to requiring the production of the written appointmenttooffi.ee. * * * But the best practice seems to have excused production. * * * There seems thus to be recognized this additional class of cases of exemption. But the usual sufficient proof, in the courts where production is not required, is held to be the facts of acting as officers and of having a reputation as officer, or, in another form, of notoriously acting as officer.” Of course the extentto which the best, or documentary evidence can be dispensed with depends upon the nature of the issue. When the question of title to the office is really not involved, and- the issue is whether the state or municipal corporation is bound by the act of the person claiming, or alleged to be an officer, it obviously suffices to prove that he acted colore officii. Whether one who has acted as a road surveyor or street commissioner in improving a public highway was an officer de tacto or de
The objection does not seem to extend to the competency of the officer as a witness to his official character; but, if it did, no ground of incompetency is perceived, upon which it could be sustained. He is not in any sense a witness in his own favor. He is not a party to the action, nor a demandant of anything from the city, and his testimony is admitted between the city and a third party.
. As the evidence was admissible both in respect to its character and the competency of the witness, the inquiry ends here, for its sufficiency in point of probative force and effect
An exception to the action of the court in giving- plaintiff’s instruction No. 1, is here relied upon. It reads as follows: “The.court instructs the jury that if you believe from the evidence in this case that the plaintiff, Mrs. Eliza J. God-bey’s house and lot were damaged by reason of a change of grade on Scott street, by the City of Bluefield, then it is your duty to find for her the amount of damages to which you believe she is entitled, less special but not less general benefits, and you are further instructed that in arriving at your verdict that it is proper for you to consider the expense of adjusting the property to the new grade, the cost of filling, injuries to trees, fences, shrubbery, sod and raising the house; in short you are to consider all things causing a diminution in value of her property referred to in this case.” The objection urged is that- the instruction ignores the defendant’s right to mitigation of the damages to the extent of the special benefits, that have accrued to the property from the improvement. One of these benefits was the filling of a depression in the street in front of the house in which stagnant water stood, during a great portion of the time. It cannot be consistently asserted that the element of special benefits was ignored, for it is expressly referred to in the instruction; but injury is said to have been done the defendant by the enumeration in the instruction of elements of diminution in value. As none of the facts so adverted to were in any sense disputed and the instruction did no more than point them out as proper for consideration in fixing the question of damages, the instruction did not assume the existence of any controverted matter, nor otherwise trespass upon the province of the jury, unless the failure to enumerate the items of special benefits, while directing attention to the elements of damage, can be regarded as having tended to mislead the jury. The matter of benefits was in no way excluded from consideration. They were disclosed by the evidence, and, if the defendant had so requested, the court would no doubt have directed 'attention to them in the manner adopted respecting damages. In the general terms used, the instruction covers the hypotheses of both parties. The alleged defects are generality and lack of specification in that part of the instruction which relates to
While not open to the objections just mentioned, the instruction, although dealing with the measure of damages, does not lay down the rule governing it. The jury are not told, in it or in any other instruction given, that, in assessing the damages, they shall have regard to the impairment of the market value of the property. An instruction given at the instance of the defendant does direct them to find against the plaintiff if they believe the property was worth as much immediately after the fill was made as it was worth immediately before. While this instruction makes a pai’tial application of the principle, it does not state it. A mere possible result of its application is pointed out. The jury are not told what to do in case they should discover a difference in value. Hence, it does not cure the defect in the instruction given at the instance of the plaintiff. Failing to direct attention to the measure of damages, the instruction tells the jury to find the amount of damages to which they believe the plaintiff is entitled to, and, in doing so, to consider the expense of adjusting the property to the new grade, the cost of filling, injuries to trees, fences, shrubbery, sod and raising the house, just as if all this expense and loss had already been incurred or sustained, or would necessarily result from the alteration made in the grade of the street. It assumes that such expense and loss will necessarily follow, and thereby virtually tells the jury that they may be included in the estimate of damages, and the verdict, read in the light of the evidence, discloses that the- jury adopted such method. As an obvious matter of fact, the fill may never be made, nor the house raised, nor the shrubbery and sod destroyed, and if such things should take place, the cost of the improvement, incidentally injuring the trees and destroying the shrubbery and sod, will manifestly add great value to the' property. The outlay will not only overcome the injury done by the alteration in the street, but add value to the property. Though this added value may not be in any sense a special benefit accruing from the improvement in the street, it would necessarily have to be set off against the cost of raising the lot and
There are circumstances under which it is proper to allow the jury to include in their estimate of damages the cost of making certain alterations in the premises. But such allowances can only be made when the alteration is necessary to the preservation of the property or the enjoyment thereof. In Commonwealth v. Railroad Co., 3 Cush. (Mass.) 25, the plaintiff was allowed to recover from the railroad company the cost of raising the ground under the bridge of the company and around it by tilling, and this cost was allowed, but the court was careful to put it upon the ground of necessity. Chief Justice Shaw said: “This instruction was correct. The claim was not to be allowed, because it conferred an incidental benefit on the respondents bj^ tilling up a tract of flats for their bridge, which the respondents might otherwise have themselves been at the expense of tilling; but because it was a convenient and economical mode) on the part of the commonwealth, of securing their own flats for use and enjoyment, instead of building two long sea walls; the expense thus incurred being like that of fencing and the repairing of other damage incidental to the taking of the land. If this tilling up saved the necessity of sea walls along the line of the railroad, which would otherwise have been necessary, it was no objection to adopting such expedient, if not more expensive than sea walls; that it conferred a benefit on the respondents. Some mode of securing their own grounds was a necessaiy incidental expense, and as such allowable.” In Thompson v. Railway Co., 27 Wis. 93, the cost of constructing a retaining wall along the line of the railway company over the plaintiff’s lot was held to be a proper allowance, because it was necessary for the protection of the lot. Cole, Judge, said: “Inconsequence of the company.running its road across the plaintiff’s lot in the manner it did, it became absolutely necessary, for the protection of his property, from further injury, to build and keep up a retaining wall.” In Marsden v. Cambridge, 114 Mass. 490, the owner of a building was allowed to recover for the loss of support and shelter caused by the removal from the location of a highway the wall of an adjacent building which the owner thereof had allowed the plaintiff to use. Wells, Judge, said: “By the
Evidence tending to show that, on one occasion, water had been collected by the street, as improved, and cast upon the plaintiff’s lot in such quantity as to cause it to flow into her cellaiCand render it damp for some time, having been introduced, the court gave at her instance the following instruction: “The court instructs the jury that if they believe from the evidence in this case that the City of Bluefield caused the embankment to be made in front of the plaintiff’s property, and that the same caused surface water to be collected and cast in a body upon said property you may consider this fact in arriving at what damages the plaintiff is entitled to.” The declaration alleges special damages from.
For the errors aforesaid, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed. Remanded.