94 W. Va. 278 | W. Va. | 1923
The circuit court sustained a demurrer to the declaration and on its own motion has certified its ruling to this court for review.
Does plaintiff’s declaration state a cause of action? In her declaration plaintiff sets out that she is the owner of a lot of land fronting 60 feet on Eighth avenue in t¿e city of
We gather from this declaration that the steel tower 3% feet square stands in Lockwood street near its intersection with Lockwood avenue, and within 8 or 9 feet from the corner of plaintiff’s lot at the intersection of these two streets; that on the top of this tower 80 feet above the ground are strung wires carrying high voltage electricity and that said wires parallel plaintiff’s property line on Lockwood avenue and within 4 or 5 feet of plaintiff’s property line, but 80 feet above the lot; and this together with the danger signal on the tower has rendered the occupancy of the property and ingress and egress thereto along Lockwood avenue dangerous, totally destroying the value of the property alleged to be $2500, at which the damage is laid.
We take judicial notice that the city of Moundsville is a municipal corporation; and the presumption is that defendant’s tower and electric line have been placed in Lockwood avenue by proper municipal authority for purposes which would justify the use of the street, and are lawfully there. For what purpose the electricity is used, whether for public
For the purpose of this case, the use of the street for the erection of the steel tower and placing thereon transmission lines may be conceded to have been rightfully granted for a proper purpose, about which plaintiff cannot complain unless it works an injury to her or her property. She says it has injured her property, totally destroyed it, placing her damage at its full value. She has the right, like every other person, to use the street in common with the general public; possibly she has the reversionary interest in the land to the centre of the street; and she has the right of free ingress and egress to and from the street over her abutting lot; and the easement of light and air. She is not complaining of damage to her right to free use of the street in common with others of the public, nor of obstruction of light or air. Her sole complaint is that the stringing of the wires in close
We conclude that defendant has the lawful right to transmit its electric energy over the streets of Moundsville and is not confined in so doing to any particular portion of the street unless contrary to its franchise from the municipality; that because it is transmitted near to plaintiff’s lot does not ipso facto make a cause of action for damages to her property ; 'that the towers and wires do not constitute an additional servitude on the streets to the detriment of her property for which she can'be heard to complain; and that the allegations of the declaration do not state a cause of action. We answer the question certified by affirming the lower court in sustaining the demurrer. Affirmed.