76 W. Va. 649 | W. Va. | 1915
By a sealed instrument dated July 15, 1907, duly recorded Leonard Moore, for a valuable consideration paid, granted defendant, Hope Natural Gas Company, an easement over certain lands owned by him in Wetzel county, “to lay, maintain, operate and remove a pipe line for the transportation of oil and gas” from the place of production to market, “with the right of ingress and egress to and from the same”.
Subsequent to the date of the conveyance by Leonard Moore to plaintiffs, defendant again entered on the lands, as lawfully it could under the right of way contract, and thereon made certain excavations, in the record denominated “bell holes”, according to the parlance of the oil business, the purpose of the excavations being repair of the section joints by substitution of new for old rubber appliances to prevent leakage. For the recovery of damages alleged thereby to have been occasioned to crops and fences, plaintiffs instituted this action before a justice, and recovered judgment for the amount of their claim, and also judgment upon appeal to the circuit court but for a less amount. On writ of error, defendant seeks reversal upon several assignments on the record and in argument.
The first assignment noticed goes to the very foundation of plaintiffs’ right to maintain the action. Under this head, defendant sought to bar recovery by the introduction in evidence, refused by the trial court, of a receipt by Leonard Moore, claimed to be a release from all damages thereafter resulting from the maintenance of the pipe line, or as an accord and satisfaction for all subsequent damages, binding on plaintiffs and their grantor, and consequently operating as an estoppel against them or as a bar to any recovery in this action. The terms of that paper are:
“Proctor, W. Va., February 15, 1909.
Received of Hope Natural Gas Company $50, in full for all damages on any and every account caused by or arising from laying, maintaining and operating a pipe line which was laid on my lands in Proctor district, "Wetzel county, West Virginia. LEONARD MOORE.”
But is the receipt susceptible of that construction? “Caused” is a perfect participle, and imports acts already done. The receipt, therefore, would cover past injuries to the land. Of that no doubt can exist. “Arising”, while having a progressive and prospective meaning in some circumstances, usually signifies the present. Most frequently, indeed generally, it denotes immediate present, and only occasionally implies future events or occurrences. When we speak of “fog rising from the river”, or “clouds rising in the east”, the expressions import an instant progressive occurrence, and not one that may arise in the future, however probable it may be. Though the present participle may, it seldom does, include a future event of a similar nature. It does not import futurity. So that the construction contended for by defendant necessarily requires the insertion of “heretofore” before “caused” and-“hereafter” before “arising”.
Can it reasonably be said the parties contemplated the implication now sought to be drawn from the language of the receipt? The established rules require that all written instruments be construed in view of the purposes contemplated by the parties when executing them. Did they intend the receipt to be in full settlement of all claims for injuries theretofore and thereafter caused by or arising from any act performed or to be performed by defendant under and by virtue
For, virtually, the charge informally made by the process requiring defendant to answer the complaint made by plaintiffs, and their statement of the áccount sued on and the evidence offered in its support, is that the excavations were negligently made, resulting in injury to crops and fences which could have been avoided by exercise of ordinary care and prudence. Effectually, such is the charge made against defendant. Although the proof offered in support of the claim fór damages so caused to fences by reason of the excavations is meager and inconclusive, it nevertheless tends to show that defendant’s employees readily could have avoided such injury if they had exercised such prudence and care. In any event, it does show lack of a disposition on their part to make any effort to restore the fencing approximately to the condition it was in prior to the making of the excavations — a duty necessarily devolving upon defendant under any construction of the contract introduced by it on the trial of the case to show the lawfulness of its entry on the lands and the extent of the liability thereby imposed, except as to acts negligently or wantonly done.
Treating the receipt as an accord and satisfaction, it would operate as a bar only in regard to matters contemplated by the agreement. Railway Co. v. Hunt, 25 Ill. App. 98; Bates v. Cobb, 5 Bosw. (N. Y.) 29; Littell v. Ellison, 17 N. Y. S.
A more comprehensive release, one specifically stating the circumstances causing the injuries and the extent of the damages indicted, was involved in Railway Co. v. Dashiell, 198 U. S. 521; and, though it purported to exonerate the carrier from all ‘ ‘ claims and demands of every kind whatever for or on account of the injuries sustained in the manner and on the occasion aforesaid, ’ ’ the court held the release was not a discharge from liability for disabilities of a permanent nature subsequently developing and not then anticipated, though due to the same cause of action. An accord and satisfaction does not operate as a. bar as to matters unknown to the parties at the time of its execution. To give it that effect might woi’k manifest injustice, and impose upon the releasor an instrument to which he did not assent. 34 Cyc. 1092; Railway Co. v. Artist, 60 Fed. 365; Railway Co. v. Dashiell, supra.
The assumption that the parties to the release here in issue intended to bar recovery upon a new and subsequent cause of action is not justified by the language used by them, or in-ferrable from the terms of the receipt. Hence, its exclusion was not erroneous.
Nor was the jury, erroneously directed not to consider the arbitration clause of the easement contract; nor did the court err in refusing to admit the evidence offered to show selection of arbitrators thereunder. When not expressly making an agreement to arbitrate a condition precluding right to sue on a cause of action, courts are not ousted of their jurisdiction. Kinney v. Relief Association, 35.W. Va. 385.
Though the measure of damages for permanent injuries to real estate usually is the difference in value immediately before and after the injury was done, yet where such injury is temporary only and readily repairable, as when fencing is partially impaired, the measure is the cost of material and labor reasonably necessary to restore the damaged property approximately to its condition when injured; and for this purpose evidence of such cost is admissible as affording a fairly accurate basis for estimating compensation for the injury done. Burk v. Railroad Co., 7 Heisk. 451. Since a fence has no intrinsic value except as an enclosure, and unless wholly destroyed as such does not materially affect the value of the enclosed lands, the cost of such restoration is a proper element to be considered by the jury in the ascertainment of damages. No more reasonable or just method can reasonably be suggested, as held by many though not by all authorities. Among the former are Vermilya v. Railway Co., 66 Ia. 606; Railway Co. v. Land Co., 27 Fla. 1; Sedwick on Damages §939 and Sutherland on Damages §1015 say the value of the fence is measured by the sum which will, properly expended, restore the premises to their condition before interference therewith by the defendant. Likewise, though not in the same way, do Deimel v. Obert, 20 Ill. App. 557; Richardson v. McDougall, 1 Wend. (N. Y.) 46; Cooley v. Railroad Co., 149 Mo. 487.
For the reasons assigned, an order will be entered here reversing the judgment and remanding the case for new trial.
Reversed, and new trial awarded.