84 W. Va. 257 | W. Va. | 1919
.In this action, trespass on the case, brought to , August rules, 1915, plaintiff recovered the judgment which defendant seeks to reverse for error committed upon the trial.’ The cause alleged as the basis of the recovery is an injury to a lot owned by him abutting on First Street in the City of Clarks-burg and to two buildings erected on the lot after he purchased it, occasioned by a permanent improvement of the street made by a contractor acting under the direction and supervision of the city authorities in 1912. The chief grounds of complaint specified in the declaration, and to show which plaintiff introduced evidence, are: Alteration of the street grade; excavation and removal of a portion of the bank or knoll through which runs the line common to plaintiff’s lot and defendant’s right of way; the destruction of steps used by plaintiff to enter his premises from the street, and defendant’s failure to restore them; a like interference with plaintiff’s connection with the city water line in the street; and impairment of lateral support.
Plaintiff purchased the lot in 1908, and thereafter improved it by the erection thereon of two buildings without applying to the city authorities to inquire and ascertain where the street grade line, located and adopted by the city authorities in 1899 and represented on the map or plat of the city streets, was, and in which grade line, it appears, no alteration has
Though an owner of a lot abutting on such a street purchased it after the municipality had established a paper grade line, but before actual physical grading conforming the street to that line, that fact' will not preclude his recovery for damages to his lot when the natural grade is so altered; but he cannot recover for damages to buildings erected after the adoption of such'paper grade and in disregard thereof. Blair v. Charleston, 43 W. Va. 62. There is “a general concurrence
This equitable rule forbids allowance of damages such as may have resulted to the buildings erected by plaintiff under the circumstances detailed, as he admits, and the court so instructed the jury trying the case. But whether, in view of the evidence submitted upon the trial of the issue joined, the jury, though properly instructed, may have been misled and included the values of the lots and buildings in their assessment of the amount of recovery to which they deemed plaintiff entitled, is a question answered in another connection. It suffices now to say that, if they did, clearly their finding at least to that extent is erroneous.
Likewise it is also true that, if the jury included in the assessment an amount chargeable to the destruction and removal of the steps by the city authorities or by the contractor performing the work of improvement under their direction and supervision, their verdict compromised the rights of the municipality to that extent also. When or by whom they were erected or since maintained does not appear, but they were there when plaintiff acquired title to the lot. The material fact, however, is their location in part at least within the boundary of the public right of way, though apparently not then or since within the traveled road bed, and not at any time during their existence obstructing the use thereof in any manner. Whether they did or did not obstruct the street, the consecutive owners, including plaintiff, did not thereby acquire the right to maintain them; perpetually within the street right of way, but only while public necessities did not require their removal for the betterment of the street.
By no invasion of the boundary can an abutting lot owner deprive the public of their rights therein. And, regardless of the ownership of the fee subject to the easement, the public authorities may remove or cause the removal of any obstruction to the use of the street whenever it interferes with the consummation of a contemplated improvement of the street, whatever may be the character of the impediment. 3 McQuillin, Mun. Corp.,. § 1319; Mt. Carmel v. Shaw, 155 Ill. 37 ; Robinson v. Spokane, 66 Wash. 527, Ann. Cases 1913C, 1012 and note. In the Washington case cited the head note reads as follows: “Any right granted to abutting owners to plant trees in the street is a mere permissive right which may be revoked at any time; and the city may, on revoking the license, cause the removal of the trees, without liability to the owner of the abutting property, if such removal is necessary in carrying out any system of street improvements.” A city has the right, and it is its duty, to remove and abate any obviously dangerous obstruction imparing the right of the
Having therefore shown that plaintiff upon proper proof of damage is entitled to recover for the injury to his lot, but not to the buildings or other improvements or accessories erected thereon after the establishment of a paper grade line, we shall next consider the measure of damages to be applied and the evidence offered at the trial relative thereto. Many decisions of this state declare the true measure of damages for injury to property abutting on a public street or road, occasioned by a change in the grade thereof, to be the difference between the value of the property immediately before, and its value immediately after, the street improvement, less any special or peculiar benefits to the property because of the improvement of the street, but not considering such general benefits as accrue to it in common with other properties similarly situated with respect to the improvement. Godbey v. City of Bluefield, 61 W. Va. 604; Harman v. City of Bluefield, 70 W. Va. 129; Rutherford v. City of Williamson, 70 W. Va. 402; Compton v. County Court, 83 W. Va. 745, 99 S. E. 85, recently decided. The existence and applicability of this rule was recognized by plaintiff and the trial court by the giving of plaintiff’s instruction No. 1. Yet after more mature reflection we were persuaded to believe this to be the more accurate and intelligible statement of the rule. The true
While attaining the same result, the advantage of the new formula lies in the simplification of the former which required three steps, whereas the new rule requires but two. In either case the first value to be found is that of the property immediately before the improvement; the second, its value immediately thereafter. But it is in the determination of the second value that the distinction becomes apparent. Under the former the jury was supposed to find a theoretical value, excluding both special and general benefits due to the improvement. The difference between the value immediately before the improvement and that last found represented the total damage done to the property, without considering any benefits thereto. Against this damage there was set off the value of the special or peculiar benefits resulting to the property, as distinguished from the benefits common to all properties similarly situated, and the remainder expressed the balance the owner was entitled to recover from defendant.
Under the new statement, the jury in determining the value of the property immediately after the improvement takes into consideration the special or peculiar, but not general, benefits, and includes them in the valuation, instead of deferring them as required by the former rule. The difference, if any, between the values' so found represents the sum which the owner is entitled to recover, no further deductions being necessary, as formerly they were. The result, however, is substantially the same under either rule, for it makes no difference whether the special benefits are deducted from 'the difference in values in the one case, or included in the value of the property immediately after the improvement in the other. In either event the amount of damages is reduced ■pro tanto. But there is this practical advantage. Under the ■old rule it was almost impossible for a jury to dismiss the
An illustration may serve to make clear our meaning. Assume the value of the property immediately before the improvement to have been $2,500; its value immediately thereafter, without considering either special or general benefits, $2,000; and the value of the special benefits $100. By the old ¡method, the difference in value before and after the improvement was $500, the total damage suffered,- from which was deducted the $100 of special benefits, leaving $400 as the amount of the recovery. By the new rule, from the value immediately before is taken the value immediately after the improvement, considering and including therein special, but not general, benefits, i. e., $2,100, leaving the sum of $400 to be recovered. The results.are substantially similar, but the difference lies in the method of approach.
The statement of the rule, however, is easier than its application, for the difficulty of separating special from general benefits is apparent on first thought. No attempt to define them will be made, but .rather we shall permit the line de-marking the one from the other to become clear as it is marked out by the gradual approach of decisions on the one side and on the other. Suffice it to say that only special or peculiar, not general benefits, can be considered under either rule. The reason for that, however, will be discussed more fully later. ■
Defendant apparently concurs in the rule as stated, but not in its application. By its instruction No. 2, refused, it sought to instruct the jury that “any benefit or enhancement of the value of the property of plaintiff caused by the grading and paving of First Street for the distance that plaintiff's property abuts upon said street is what is known in law as a special benefit.” In support of that instruction
Perhaps a simple illustration will serve to show why only special benefits peculiar to that property should be deducted from the damage caused, and not those benefits which are common to all properties similarly situated. Suppose a series of lots abutting on a common street, only one of which is injured by the grading and paving of that street. The one lot has suffered damage to the extent of $500, but has been specially benefitted to the extent- of $100 by the removal of a deep and malodorous mud hole immediately in front of it, while every lot abutting on that highway, including plaintiff’.s, has been enhanced in value $250 by reason of the better grade and paving. Clearly the city has the right to deduct the $100 special benefit from the total claim, leaving $400 as the amount necessary to restore plaintiff’s lot to the same relative value it bore to other lots on that street before the improvement. But what of the $250 benefit common to every lot due to a general enhancement of values because of the improvement? Should it also be deducted? Clearly not. For if it is, plaintiff is the only property owner on the street to lose the general enhancement of values common to all the properties, and to which he is entitled as tax payer. Every other owner retains his additional $250, and so should plaintiff, for the $400 restores his lot to the same relative value it possessed immediately before the improvement, thus placing it on a plane of equality with the other lots similarly situated, and ready to share with them in the general enhancement of values.
The jury having been instructed properly, it becomes necessary next to consider the evidence upon which was based the verdict of $950. As stated before, the only damages proper to be considered by the jury were those- relating to the lot. Only one witness, however, the plaintiff, was asked ex
The trial court was of opinion that there was sufficient evidence of the damage to the lot alone, when taken into consideration with the view of the premises had by the jury, and the instruction expressly restricting the plaintiff’s- recovery to the damage suffered by the lot, to justify the jury’s consideration of the case on that basis. Great weight is given to a verdict based upon a view, and ordinarily it is permitted to control, even where other evidence supporting the verdict is weak. But where property valuations are concerned, es-
There is a further reason for our disapproval of the verdict and judgment below. As an element in determining the damages sustained plaintiff may show the cost of those alterations in his property, by way of adjusting it to the new grade of the street, which are rendered necessary to preserve it from further' injury and render it fit for use and enjoyment. The cost of a retaining wall, therefore, when necessary to protect the property and fit it for use and enjoyment, may properly be considered by the jury. Harman v. Bluefield, 70 W. Va. 129; Rutherford v. Williamson, 70 W. Va. 402, 408; Traction Co. v. Windom, 78 W. Va. 390; 1 Elliott, Roads & Streets (3d Ed.) § 592. But such evidence must be considered only in subordination to the rule governing the measure of damages, and as an element in determinging the • amount to which the owner is entitled. Godbey v. Bluefield, 61 W. Va. 604; Compton v. County Court, 83 W. Va. 745, 99 S. E. 85.
■ We are confronted with the difficulty here, however, that
. For these reasons our conclusion is to reverse the judgment, and remand the case for new trial.
Reversed and remanded for new trial.