46 W. Va. 445 | W. Va. | 1899
This was an action of trespass on the ease brought by William Ridgeley against West Fairmont, a municipal corporation, in the circuit court of Marion County. The facts upon which the suit is predicated!, as appears from the
It is claimed by counsel for tbe plaintiff in error that the court erred in overruling tbe demurrer interposed by tbe defendant, insisting in bis brief that tbe action, being, in substance, ex contractu, it should have been brought iba .assumpsit, Tbe damage complained of in tbis case, however, was indirect, and, as I understand it, trespass on tbe case, in an action of this character, is not only proper, but tbe one uniformly resorted to, in cases of tbe kind. See Hutchinson v. City of Parkersburg, 25 W. Va. 226; Johnson v. Parkersburg, 16 W. Va. 402; Blair v. City of Charleston, 43 W. Va. 62, (26 S. E. 341,) — all cases similar, in many respects, to the one at bar, in which tbe action was trespass on tbe case. Tbe gravamen of tbe plaintiff’s declaration -appears to be that, without the consent of tbe plaintiff, the defendant has rai-sdd! tbe grade of tbe street in front of bis property, so that surface water is thrown upon plaintiff’s lot, which, with tbe buildings on it, is thereby damaged without tbe plaintiff’s consent, and be is thereby deprived •of all safe, commodious, convenient, and proper ingress and egress to and from said land. Now, while it is true that, where the defendant seeks to confess and avoid in trespass, a special plea is required, in tbe case at bar tbe plaintiff avers in bis declaration that tbe grade was changed in front of bis property, and tbe injury complained of resulted therefrom, without 'Ms consent, and under tbe general issue, surely, tbe defendant might be permitted to show that the grade was raiilsed with bis consent, especially when be was paid a consideration for it. As to the evidence which may be given under tbe general issue in an action on tbe case, Hogg, in his valuable work on Pleading and Forms (184), says: “Thp general issue, as we have seen, in actions ex delicto, is that of not guilty;” giving the form of the plea, and adding: “Under which may be given in evidence a former recovery, release or accord and satisfaction, or whatever would, in equity and good conscience, according to existing circumstances, preclude the plaintiff from recovering, as any matters which operate a discharge of
Bill of exceptions No. 7 also shows that the defendant asked a witness to state what, if anything, the plaintiff said, at the time the work was being done, about the town putting a sewer through his property as a compensation for damages. This question was objected to by plaintiff’s counsel, and excluded by the court; which ruling was erroneous, for the reasons above stated. The case of Pifer v. Brown, 43 W. Va. 412, (27 S. E. 399), relied on by counsel for defendant in error, does not apply to this case, as the question of license does not arise in it.
It appears from the testimony that one of the witnesses by whom the defendant offered to prove that the plaintiff agreed that, if the town would put in certain tiling from the end of the culvert to a point near his dwelling, he would take that in consideration of all damages, was mayor of the town when the grade -was changed, another was a councilman, and a third the civil engineer who changed the grade; and if defendant had been allowed to show, as we think he had a right to do, that the plaintiff agreed in consideration of said sewer being put down as indicated by him, which was really done, he would claim no damage, the result of the case might have been quite different.
The defendant, by its counsel, asked the court to instruct the jury that the general benefits arising from an improvement like the one mentioned, — the grading and paving of a public road or street, — is that benefit every one may enjoy, — the right to use or pass over the same, — and the enhancement in value along and near such improvement is to be considered as a special benefit to the owners of said property. This instruction the court refused to give, —why, does not appear. It accords with the ruling in the case of Blair v. City of Charleston, 43 W. Va. 62, (26 S. E. 341), in which it was held: “The question is one of damage, less special, but not less general, benefit;” so that, in order that the jury might properly consider the question of damage to this property, it was proper that the court should instruct them as to the difference between general and special benefits, and the instruction should have been given.
The court also erred in allowing the witness Fourtney to fix the damage to the plaintiff’s property by reason of the change of grade at one thousand dollars, based on the use of said property for a particular purpose, when the true rule of ascertaining the damage in a case of this character is stated in Blair v. City of Charleston, supra.
My conclusion is that the circuit court erred to the prejudice of the defendant in the rulings above indicated. 'The judgment complained of is reversed, the verdict set aside, and' a new trial awarded.
Reversed.