56 W. Va. 592 | W. Va. | 1904
A. S. Richards brought an action against The Ohio River-Railroad Company to recover damages- to a house and lot in
There was a judgment on demurrer to evidence for the plaintiff. The case is similar to the case of Uhl v. The Ohio River Railroad Company, decided this term.
I do not think it necessary, for the law governing the case, to write an opinion, as the law is amply laid down in the opinion by Judge PoeeestbaRGER in that case.
There is a feature of this case different from the Uhl Case. In this case Richards purchased his property after the railroad had been constructed. This is merely mentioned, but not relied upon as a defense. dSTo authority is cited upon it. It is not supposed that duty of the company- to put in a proper passage for water was passed from Richards’ grantor to him; but the duty continued, from year to year, as between the company and any one owning the lot, it being no less the duty of the company to protect Richards, though he bought after the construction of tho railroad, than it had been to one owning the lot before and after such construction. As the construction and maintenance of the railroad was pursuant to law, we cannot say that its presence was per se a nuisance; but its negligent construction and maintenance was a private nuisance in nature as to Richards — the same in effect as to him as if unauthorized, because of negligence. The authority did not authorize negligence. It is a private nuisance in such case. Jaggard on Torts, 788; Taylor v. Railroad, 33 W. Va. 39.
He had right to assume that the duty would be performed, and was not in any way bound to refrain from buying a residence there because the railroad was already there. If one comes to a nuisance, that does not debar him in legal proceedings for harm from it, or to restrain it. 21 Am. & Eng. Ency.
Judgment affirmed.
Affirmed.