71 W. Va. 754 | W. Va. | 1912
Lead Opinion
The third jury trial between the parties to this action, very hotly contested on both sides, resulted in a $1,200.00 verdict for the plaintiff, as damages for injury done by the defendant to her real estate, a small lot in the city of Fairmont, and judgment was rendered on it, after an adverse ruling on a motion to set it aside. Numerous assignments of error are vigorously pressed in this Court.
The declaration was attacked by demurrer and also by motion to strike out a portion of the same, because it used such expressions as “permanently injuring and damaging” plaintiff and her property and “depreciated in value” the said property, in connection with the statement of the facts, constituting the injury and as legal results deduced therefrom, while the facts themselves, as to one part of the declaration, make out a case of only temporary injury and damages. Another portion thereof charges that the defendant actually took and appropriated to itself a portion of the lot, without giving any compensation therefor, by the construction thereon of a stone and cement wall and a large fill or embankment against the same and thereby permanently injured and damaged the same and rendered it less marketable and depreciated it in value. ” These expressions, indicative of a claim for permanent damages, occur in several different places and connections.
The two classes of claims are very generally recognized by the authorities, but we are aware of no decision forbidding the union thereof in one declaration or a single count, and no such ruling has been brought to our attention in the argument against the right so to unite such claims. In those instances in which the facts justify a claim for temporary damages only, the terms indicating a claim for the broader right may be
The injuries complained of in the declaration all flow from a single act of the defendant, the construction of a fill across, a ravine, which fill, according to the claims of the declaration, is partly on the plaintiff’s lot and partly on that of the defendant. This fill or embankment'is of huge proportions. One witness says its vertical height at one point is about 35 feet, and the retaining wall along the base of it is six or eight feet high. The occupancy of a portion of the plaintiff’s lot by this wall and fill, depriving her of the use thereof and rendering it unfit for use, is complained of. Other specifications of injury, resulting from the same cause, or the collection of surface water from a large area by means of a street and gutter on top of the embankment and the casting of the same over the wall onto her property, as well as the flow of surface water from the side of the embankment down on her property. Originally, the two adjacent lots sloped back from New Street to a ravine called Parker’s Run, and the Avater naturally flowed back off of each lot into the raAdne. ISToav, the embankment casts the surface water from its northern side over onto the plaintiff’s lot. The street on top of the embankment, Avhich seems to be a private one, made by the defendant to bring into market a great many lots owned by it, gathers and carries water for a distance of 300 or 400 feet Besides, the water is conducted by the defendant from a spring situate some distance beyond the two lots along or across the street, and cast, by means of pipes, over the wall onto the plaintiff’s property, a few feet from the branch or creek in the mune which passes through an arch under the fill. All of these facts are not given at length in the declaration, but the causes of injury are sufficiently stated therein and shown to flow frpm the construction of the embankment and wall. Another cause of injury stated is the collection of water by the defendant into a body by means of the roof of a house on its lot and casting the same upon the plaintiff’s lot. This may be regarded g.s an act separate and distinct from the construction of the embankment and wall, but it was done by the same party and upon the same premises and works injury of the same kind, for which
Having noted the absence of authority against the union of claims for temporary and permanent damages in the same declaration or count, we may, with propriety, say permission of such pleading accords with the general principles of the law of pleading. In cases of personal injury, claims for permanent or general damages are united with those for special damages. Several breaches of a contract may be assigned in a single count. McCray v. Craig & Sons, 70 W. Va. 735. “Various kinds of damages resulting from a single wrongful act may be united in one count.” Wolfe v. Beecher Mfg. Co., 47 Conn. 231; Mullin v. Blumenthal, 42 Atl. Rep. 175; 31 Cyc. 119-20; 5 Enc. Pl. & Pr. 732. Since the defendant’s rights may be fully protected in the deliberation and conclusion of the jury by proper instructions, telling them what facts and circumstances call for temporary or special, and what for permanent, damages, he is fully protected against injury from confusion of issues.
The foregoing observations and conclusions, respecting the rulings of the court upon the demurrer, suffice to sustain its action in overruling the motion to strike out of the declaration the allegations concerning the construction of the wall and embankment on a portion of the plaintiffs lot and the flow of water from the roof of the building on the defendant’s lot.
Objections to testimony and an instruction, which the court overruled, called for judicial determination of the character of the injury and the measure of relief in an action of this kind. Several witnesses were permitted to testify to their estimates and opinions as to the cost of removing the wall and embankment so far as they are upon the plaintiffs property, and two to give their opinions as to the depreciation in the market value of the property, occasioned by the existence of the wall and fill thereon. As to damage by the destruction of plaintiffs garden, shrubbery and fruit trees, loss of rentals or use of the property and cost of repairs, necessitated by the flow of water onto the lot, no itemized amounts were stated by any witness. The damage was stated in general terms. As the two items, estimated cost of the removal of the wall and embankment and depreciation in market value, constituted the large claims‘found
. The distinction between permanent and temporary injuries to real property is discussed more thoroughly in Henry v. Ohio River R. R. Co., 40 W. Va. 234, than in any other case decided by this Court. In it all of our former decisions and the authorities generally are considered and reviewed. The purpose of that discussion, however, was not to define what will constitute an injury of either class under all circumstances, or to lay down an inflexible criterion, hut to determine whether the facts therein disclosed made that case one for permanent damages, so as to apply the statute of limitations, and it was decided they did not. The opinion says: “Where the nuisance is permanent, so that it will continue unless labor he applied to change it, and it necessarily injures the plaintiff, there must he a recovery in one suit for all damage, and none other can be afterwards brought, and recovery of damages will give the defendant right to continue his nuisance without further claim from the individual; hut, where it is otherwise, there cannot be recovery for future damages.” However, this must not he taken as matter of decision, for it was not, as the syllabus shows the observations were intended only as matter of discussion. •
A thorough examination of the cases indicates that the question arises under variant conditions, leading to apparently inconsistent conclusions. A man may build a structure upon his own land and so inflict actionable injury upon his neighbor, or in the construction of a building or other work, he may go over the lino onto his neighbor’s premises and commit a trespass. In the former case, he may maintain the structure unless compelled by proper process to remove it, because it is on his own land. If he sees fit to suffer a recovery against him of permanent damages in a case proper therefor, and pays it and the plaintiff accepts it, or possibly without payment and acceptance, he acquires a right to continue it. If the injury con-stitues only ground for temporary damages, he may also continue it, until prevented by proper proceedings, but must pay the damages from time to time as they occur. These conclusions
The measure of damages in all such cases, is the rental value of the property wrongfully occupied and withheld, with compensation for injury to the residue thereof and for any crops, shrubbery, trees and the like destroyed and injured. Such is
This conclusion is logical. The opposite would allow the plaintiff to recover, on the theory of a necessary expenditure, money in fact not expended, and which may never be expended. Again, it is fair to the trespasser to allow him to abate the nuisance himself by the removal of the structure, as authorities say he may, since he may he able to do it for a great deal less than the estimated cost. Recovery in one action for all possible damage, future as well as past, in the. case of a trespass such as this, would lead to inconsistent and illogical results in subsequent actions. Suppose, having recovered the estimated cost of abatement and the rental value in one action, the plaintiff sues again without having removed the structure. She has had the use of the money which may be practically or wholly equivalent to the use of the land, and has virtually deprived herself of the rental value or use of the land for the period covered by the subsequent action, by her failure to regain possession thereof by resort to appropriate and adequate remedies and either remove the structure or cause it to be -removed.
The rules governing the elements and measure of damage in cases of the general class to which this one belongs must necessarily depend somewhat upon the peculiar circumstances of the case. There are no doubt many instances in which costs of repairs for injuries done, and possibly estimated costs, may be recovered, but, in such cases the defendant is not in the actual occupancy of a portion of the premises, and the plaintiff either has the power to remove the deposit or obstruction immediately or has already done so. In this case there may be recovered certain items of expense and damages suffered in addition to the rental value of the property, but not the cost of removing the structure which the defendant maintains and uses on the premises in question. As to this the authorities are emphatic and pretty generally uniform. There may be a few decisions inconsistent with the proposition. So the form of the testimony as to damages may no doubt vary with the circumstances of the case. If injury is done to property by deposit of earth, sand, ashes, slag or some other substance, by merely
For the foregoing reasons, the court erred in admitting testimony as to the cost of the removal of the wall and fill and a,s to depreciation in the market value of the property.
A great deal of the testimony, relating to the plaintiff’s title, as determined by her boundary lines and her possession, Avas admitted over objections of the defendant. The character of this eAddence and the basis of the objections thereto avüI be sufficiently indicated by the folloAving facts and evidence:
Plaintiff’s lot is one of a series or number of lots into which James D. Lloyd and Henry Cumpston and wife divided a tract of about four acres of land Avhich they had acquired by deed dated February 10, 1892. They divided it into two parts by a street, running generally north and south, on each side of Avhich they staked off a roAv-of lots, consisting of five each, all fronting on it. The middle lot on the eastern side was conveyed to Tillie Higginbotham by deed dated April 28, 1892. A lot adjoining hers on the south was conveyed to Mary Layman by deed dated June 15, 1892. The lot adjoining the-Mary Layman lot on the south Avas conveyed to Cappie Cumpston by deed dated December 3, 1896. This lot came subsequently into the possession of the Fairmont Trust Company, which conveyed it to the Fairmont Real Estate Company, the defendant. On this lot, one of these companies erected the fill or embankment which the plaintiff claims extends over onto the southeast corner of her lot 11. or 12 feet. The controversy arises as to a triangle bounded on the north and
The description in the original deed fox the plaintiff’s lot as well as that of the defendant’s and some others of the series, on both sides of the 30 foot street between the two rows, are said to be inconsistent with the locations claimed by the plaintiff and her witnesses. The magnetic courses called for in these deeds, it is claimed by the defendant, locate the lines so as to give to it the triangle in question. The plaintiff denies that the courses called for in the deed were ascertained by any survey of the lots made at or before the time of the execution thereof and there is no proof that airy such survey was made. A witness for the defendant who prepared the deed from Lloyd and Cumpston to Mary Layman says he got the description of the lot from the grantors, he supposes. He only knows he prepared the deed at the instance of Mr. Cumpston, and he has no knowledge or» recollection of any survey of the lots. A survey made from the calls in the deed for the purposes of this action indicate, by a plat thereof, that the triangle in question belongs to the defendant, and one of the witnesses for the plaintiff, a surveyor who made a plat in accordance with the plaintiff’s claim and took the line of posts between the Layman-and Higginbotham lots as the basis for his plat, admits that a survey by the deed, allowing for the variation on account of time, would give the defendant the land in dispute; but, if the courses were merely adopted from the exterior boundaries of the four acre tract ascertained by a survey made in 1868, as the plaintiff suggests, these courses applied now, allowing for variation, would give the defendant only about one-half of the disputed area, according to the testimony of the surveyors. Seeking support for this suggestion and claim, the plaintiff’s attorneys elicited from the surveyors admissions that a line run on the bearing -of the deed from the agreed corner near the south end of Center street, allowing variation for time from its date, would not follow the street line, but would be over in the street several feet at .the north end, and it appears that the line actually run for the east line of Hew Street, from the recognized corner at the north, falling within the plaintiff’s lot to the east of the recognized street line, would cross the front of her porch. To avoid this,
The plaintiff’s deed calls for a course along the Leonard line, the line of the rear end of the lot, S. 9.5 E. to a stake at the corner in dispute and thence S. 79 W. to the street. The deed from Llojul to Cappie Cumpston for the defendant’s lot calls for no courses. The description starts with the corner of the Layman lot, runs 60 feet with the street to the corner of the lot of the Vanatta heirs, thence with the line of their lot to the line of Joseph McElfresh and with his line “fifty (50) feet more or less” to the line of Mary Layman. The deed to Tillie Higginbotham described her line as commencing at a point 120 feet from the river road and running S. 11 E. 70 feet with the line of the street to a stake, thence H. 79 E. to the Leonard line, thence with the Leonard line 70 feet to a stake and thence S. 79 W. in a direct line to the place of beginning. The lot next to the Mill Road which, witnesses Higginbotham and Layman say, was made to include the triangle, was conveyed to Clyde S. Hoult whose deed described it as one of the uniform width of 60 feet to the Leonard line and thence along said line to Mill street, and thence along the street to the beginning. The remaining lot was conveyed to S. M. Riley. No courses are given in the deed conveying it. It calls for a corner and a line of Tillie Higginbotham. If the triangle in dispute goes -into the Cappie Cumpston lot, now owned by the defendant, it will be 61 or 62 feet wide at.the eastern end while the deed calls for 50 feet more or less. If it goes into the Hoult lot at the other end of the row of lots, that lot will be 71 or 72 feet instead of 60, along the Leonard line-. ' The confusion, resulting from carelessness or negligence in laying off and-conveying these lots is, therefore, very apparent.
Hnder well settled rules, the plaintiff was entitled to prove not only the location of the artificial monument, the stake called for as the southeast corner of her lot, and also her possession up
All of the thirteen instructions given at the instance of the plaintiff were excepted to and the objections to none of them have been waived. Only Eos: 7, 8, 9, 10, 11 and 13, however, are specifically discussed in the brief. Plaintiff’s instructions Eos. 1, 2, 3 and 4 are good under the law already stated, respecting the superiority of monuments over courses and distances in the ascertainment of boundary lines.
Instruction Eo. 7 authorizes the jury to. include in the vérdict for the plaintiff, in case they should find for her, the cost of restoring her lot to the condition in which it was before the wall and embankment were built thereon. Under principles already stated, she is not entitled to recover that item. Hence, the instruction should not have been given.
Instruction Eo.- 8 authorized a verdict for the plaintiff if the jury should find that she was in the actual possession of the triangle-at the time of the trespass, in the absence of proof of title to the disputed premises in the defendant. The legal propo
Instruction No. 9 embodies the same legal proposition and also the hypothesis of title by adverse possession. The first branch thereof requires the defendant to prove to the satisfaction of the jury, by a preponderance of the evidence, that it, at the time of the trespass, was the true owner of the triangle or entitled to the possession thereof. We see no objection to this requirement of proof. The state of the title at the time of the trespass was the vital factor in the inquiry submitted. To justify its action, the defendant was bound to show title in itself by proof, and, in the event of conflict in the evidence on that point, it could not prevail without showing a preponderance in its favor, since it has the affirmative of the issue.
The propriety of the action of the court in submitting the seeond inquiry of the instruction depends upon the existence or non-existence of evidence appreciably tending to prove the fact, as has been stated. The tendency of the evidence to prove possession to the line claimed by the plaintiff is clear. According to it, she and her predecessor in title occupied and used the lot up to that line from sometime in the year 1892 until the wall was built in the fall of 1902 or 1903. As the land in dispute was not enclosed by a fence, it becomes necessary to say whether cultivation and improvement up to the line claimed, without enclosure, will sustain a claim to title by adverse possession, and, if so, whether such cultivation and improvement must go to the line at every point. In Core v. Faupel, 24 W. Va. 238, 245, Judge SnydeR said a claimant without color of title could claim nothing beyond his enclosure and cited Kincheloe v. Tracewell, 11 Grat. 587, but other portions of his opinion in the same case are inconsistent with this general statement, showing he used the term “enclosure” in a sense more general than actual physical enclosure. In neither of these cases, however, was the question actually involved or decided. For the contrary of the proposition, and the soundness of the
As the instruction on the law of adverse possession extends
Instruction No. 11 embodied the theory or hypothesis of an. agreed division or boundary line under the well known law-applicable to that subject. Its applicability is denied on the-theory of lack of evidence of acquiescense. Practically all of' the evidence tending to prove acquiescence has been stated and we think it is sufficient. Failure of Mary Layman, the former owner of the plaintiff’s lot, to testify and the testimony of Harry Cumpston, the husband of Cappie Cumpston, to the-effect that he remonstrated against the claim of Mary Layman,, are dwelt upon in the argument against the instruction. There is no proof that Mary Layman personally made any verbal claim-as to the location of the line. Her husband testified that he claimed it for her. The absence of proof of her verbal claim, does not do away with the force and effect of her acts. She occupied and used the land up to the line in controversy with: the knowledge of the adjacent owner. This certainly constitutes: sufficient evidence of the claim on her part to justify an instruction. As to the remonstrance, there is conflict in the-
Instruction Ho. 13 stated the law as imposing liability upon the defendant for injury and damage to the plaintiff’s property by maintaining and keeping the wall and dirt thereon, if the .jury should find the Fairmont Trust Company had placed the wall and dirt on her land, while the plaintiff was the owner thereof and in possession of it, and was the owner thereof at the time the suit was brought and in possession, and that the Fairmont Trust Company afterwards sold the wall, dirt and stone, with adjoining ground, to the defendant, and the defendant, after purchasing the same, used and kept the wall and dirt on her propert}r. One ground of objection to this instruction is alleged lack of proof that the Fairmont Trust Company sold the wall, dirt and stone to the defendant. It sold the Cumpston lot to the defendant and put it in possession thereof, and thereafter the defendant made the same use of that lot and the embankment that its grantor had made of it. Its claim of title to the triangle and right to maintain the wall is asserted under the deed from its grantor. So we think the objection untenable. We have examined instructions Nos. 12, 14 and 15 and found them unobjectionable.
For reasons stated, the court properly refused defendant’s instructions Nos. 7 and 8, each of which would have required the jury to ignore the evidence of the claim to lines and a corner different from those indicated by the courses called for in the deed. Defendant’s instruction No. 9, intended to tell the jury as a matter of law, that plaintiff’s declaration does not ■cover the land in controversy, was also properly refused. In its
The fight to recover at all in this action is challenged upon two grounds: (1) lack of evidence of title to the triangle, and (2) inapplicability of the remedy. The first has already been disposed of in.passing upon the rulings as to the evidence and instructions. Ejectment is said to be the appropriate and exclusive remedy because the defendant is in possession of the triangle, claiming title thereto, and it is said the question of title, disclosed by the evidence, cannot be tried in an action of trespass on the case. The' authorities cited in support of this contention, including Park v. Morris, Layfield & Co., 63 W. Va. 51, deal with instances in which the plaintiff neither has, nor ever had, possession, or has been wholly ousted, so that the action has for its real purpose and object only the title. They are not applicable under the circumstances of this case. Here, the plaintiff is in possession of the lot and once had possession of the triangle in dispute and the defendant and its predecessors in title had never had possession of any part thereof prior to the trespass complained of. “Title to land gives to the owner
The action of the court in refusing nine special interrogatories to the jury, requested under the provisions of section 5 of chapter 131 of the Code, is complained of. Ho. 1 asked the jury to state in what year the excavation and wall were built; Ho. 2, what company made the excavation and built the wall; Ho. 3, whether the plaintiff was then owner of the land on which they were built; Ho. 4, how she became vested with the title; Ho. 5, which of the two lines indicated on the plat, if either of them, was the true line between the lots, and, if neither, where the true line is; Hos. 6, 7, 8 and 9, what damage was done by the entry on the lot and building of the wall, what amount of damage by a wooden trough on the wall, extending over on plaintiffs lot through which water passes and was discharged thereon, what amount of damage was done by the casting of mud, sand and filth on plaintiffs lot and what by surface water, rain and melted snow, collected and cast in a body on the lot by the defendant.
The court properly refused all of these requests because no response to any one of them, nor responses to all of them combined, whatever they might have been, would have been inconsistent with a general verdict in her favor, within the meaning of the statute. Ho. 1 is bad for immateriality, since the injury is a continuing one and the statute of limitations would not preclude recovery for damage within five years before the action was brought. It was evidently asked in view of the contention that the injury was permanent within the law of trespass. Ho. 2 is inconclusive because there was a liability upon the defendant for maintaining the excavation and the wall, if the plaintiff was owner of the lot or had possession of the same when the wall was built, although another company had actually
The statute, authorizing interrogatories, was not designed to permit any and all sorts of questions, nor questions bearing upon material matters involved in a trial merely because of their materiality. The purpose was to enable a party to elicit a special finding on some question or a series of questions, which, if found in his favor, would show there is right to recover, in the case of the plaintiff, or the absence of any ground of liability whatever, in the- case of the defendant, so that the court, in case of a general verdict contrary to the facts so specially found, may disregard the general verdict and render judgment in accordance with the special findings, not grant a new trial or scale- down the verdict. The statute authorizes these special findings in either of two forms, separate verdicts upon one or more of the issues, or findings in writing upon particular questions of fact stated in writing. The final sentence of the section, dealing with the effect of such findings, and showing the purpose for which they are authorized, says: “Where any such separate verdict or special finding shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” It was not intended to allow these interrogatories for the purpose of finding some ground upon which to obtain a new trial for insufficiency of the evidence as to some item in the demand sued for or the like, but tó enable the court to see whether it shall give final judgment for the plaintiff or the defendant. In Peninsula Land Co. v. Insurance Co., 35 W. Va. 666, this Court adopted the view here stated and announced its conclusion in the following terms: “The special findings, taken as a whole, must be clearly inconsistent with the general verdict, and, to be inconsistent, they must clearly exclude every conclusion that would authorize
After having found reversible error, outside of the ruling on the motion to set aside the verdict, we do not, as a rule, inquire as to the sufficiency of the evidence. We do so, under such circumstances, in veryjflain cases only, a class to which this one does not belong.
For the errors noted here, the judgment will be reversed and a new trial awarded.
Reversed^ and New Trial Ordered.
Dissenting Opinion
(dissenting in part).
The last statement in point 8 of the syllabus does not meet my approval. Where one is holding under mere claim by possession — has no paper to define the the extent of his possession— it goes no farther than his actual possession by inelosure, cultivation, or improvement. He can not merely claim to an imaginary line. His possession, which is the sole basis of his claim, can take him no farther than it actually goes.