39 W. Va. 272 | W. Va. | 1894
This was an action of trespass on the case, brought in the Circuit Court-of Kanawha county byMahlon S. Rogers against the Coal River Boom & Driving Company to recover damages for injuries sustained by the plaintiff by the construction of a boom in Coal river opposite the lands of the plaiutiff, located about two miles from the mouth of said river, and by causing the river bank, which belonged to the plaintiff, and had been leased to said company, to was;!) and cave. The defendant demurred to the declaration and to each count; and the demurrer was sustained.
Several bills of exception were saved to the defendant during the trial, and during its progress the defendant by its counsel moved the court to give to the jury the following instructions, which are numbered respectfully 3, 4, 5, 8, and 9, which the court upon consideration refused to give.
“JSTo. 3: The court further instructs the jury that if they find from the evidence that at the time of the injury com-' plained of the plaintiff’ had leased to the defendant the river-bank alleged to have been injured for boom-purposes, with contemplation of constructing and operating a boom, wherein the defendant’s boom was constructed, then the plaintiff can not recover for damages resulting from the continuance and operation of said boom, unless they further find that said injury was the result of negligence on the part of the defendant, in such construction and use.”
— “.lío, 4: The court further instructs the jury that the letting of the Í5ank — the use of a boom, with knowledge at the time of the point -of location of said boom, is, in the absence of a covenant to "the. contrary, an assumption by the lessor of all risks of damages^or injuries to said banks resulting from a reasonable construe^011 and use of said boom, and for such damages he can nothin such case, recover.”
“No. 5: The court instructs the jury that if they find from the evidence that the plaintiff’ leased to the defendant the river banks alleged to have been injured, for the use of a boom, that the plaintiff’ assumed the risk of such damage as might result from the reasonable use of such boom; and the court further instructs the jury that if they further find*275 that the defendant constructed, used, and operated its boom in a reasonable mannér, they must find for the defendant.”
“No. 8 : The court further instructs the jury that if they find from the evidence that the plaintiff leased to the defendant the river bank, the alleged injury to which is the cause of this suit, for boom purposes, he assumed the risk of all ordinary wear and tear resulting to said bank from the reasonable and proper construction and use of said boom; aud that, uuless they find from the evidence that the said boom was constructed aud used in a wrongful, improper, or negligent manner, they must find for the defendant; and, further, that the burden is on the plaintiff to prove that said boom was constructed or operated in a wrongful, negligent, or improper manner.”
“No. 9: The court instructs the jury that any person leasing property for a specified use, in the absence of an express covenant to the contrary, assumes the risk of the ordinary wear aud tear of such property resulting from such use, and the said lessee is not liable for damages to said property resulting from such use, unless caused by his wrongful or negligent act.”
To the opinion of the court refusiug to give said instructions the defendant by its counsel excepted.
In considering the propriety and legality of these instructions let us look first at the contents of the lease. The plaintiff' in consideration of the sum of forty dollars, leased to the defendant a strip of land on the west bank of Coal river, between low-water mark and the top of the bank above high-water mark, from the upper line of his land to the point opposite the mouth of Indian creek, for the use of the boom belonging to said company for the period of one year with the right to renew the same from year to year, so long as the said company or its assigns maintained a boom at said place in Coal river, aud the right of way to a path along the top of the bank for men to pass up and down to attend to the said boom.
Thus it appears from the face of the lease itself that the river bank was leased for the use of the boom; a path and right of way for the employes along the top of the bank
The character of the boom — whether it was to be a string-boom or a boom with piers — was not set forth in the agreement, but it was for the use of the boom belonging to said company. The plaintiff, in his testimony, states that when he leased his bank it was for a string boom, and after the lease was made the boom was built on its present location and shape, which throws the water over against his land, and causes the bank to wash away.
The le'ase, however, was made in December, 1886, and forty dollars a year had been paid by the company and received by the plaintiff for'six years at the time this suit was tried in 1893, making an aggregate of two hundred and forty dollars, or eighty dollars per acre for the land used, so that the plaintiff could afford to have his bank washed to some extent, and must have contemplated it when he fixed the rent. The plaintiff, then, leased his bank for the use of the boom. In what manner it was to be used,.other than for a passway for the employes, does not appear; but the boom company wanted that bank for .the use of the boom. It may have been for the purpose of fastening logs or spars to, or it may be that they were aware that by displacing the water in the river with their logs and piers they would cause the water to back up or flow against that bankand knowing that this was necessary for the operation of their boom, they were willing to pay a large price for it; and the plaintiff had full notice of the purpose for which it was to be used, and received and continues to receive the rent for the same, renewing the lease year after year without protest.
We think the instructions asked for by the defendant
As to instruction JSTo. 3, there is no proof or pretence that the defendant was guilty of any negligence in the construction of its boom. There was no contract that the boom should be constructed and maintained in any particular manner; and- the fact, that the plaintiff received the rent year after year without objection, shows that the plaintiff acquiesced in the action of the defendant in constructing it as it did, and that estops him from complaining of the manner of its construction. The bank was leased for boom-purposes, and, unless the defendant was guilty of some negligence in the construction or use of-its boom, we can not see that the plaintiff' can recover damages for the continuance and operation of said boom; and the court should have so instructed the jury. Wood, Landl. & Ten. p. 928, states the law as follows : “The tenant is liable either to the landlord or third persons for any improper use of the premises producing damages, as well as for any negligence in their use;” citing numerous authorities.
Instructions Ros. 4 and 5 may be considered together, as they are of the same import. The said river bank having been leased for the use of the boom, with knowledge at the time of the point of location, certainly implied that the lessor, if he knew what he was doing, assumed all the risks of damages or injuries to said banks resulting from a reasonable construction and use of said boom. If a man hires his property for a p.urpose, in which it will be subjected to severe usage, he charges more for it, but he assumes the risk resulting from a reasonable use of it in the business for which it is hired, and for these reasons we think the said instructions should have been given. In the case of Torriano v. Young, 6 Car. & P 8, it was held that “a tenant from year to year is not liable for permissive waste, and is not liable to make good mere wear and tear of the premises.” See, also, Tayl. Landl. & Ten. 402.
As to the eighth and ninth instructions, they should have been given under the authority above cited, and for the reason that there can be no question that the burden is on the plaintiff' to prove that said boom was constructed or
Did the court err in allowing the witness John Rogers to give his opinion to the jury as to the probable future washing of the lands by reason of the construction of the boom? This witness stated, that in his opinion the damage to the plaintiff’s land, caused by the erection of the defendant’s boom, was from six hundred dollars to eight hundred dollars. And on cross-examination witness stated that he took into consideration the future washing away of about fifteen acres thereof in estimating the damages stated by him, whereupon the defendant moved to strike out so much of the said witness’s evidence as stated his opinion of the amount of damages aforesaid, and exclude it from the jury, and insisted it was not admissible in law upon the said issue; but the court decided that the evidence so given by the plaintiff’s said- witness was admissible and proper to go to the jury, and the same was accordingly admitted, and left to their consideration.
Upon this question Sedgwick on the Measure of Damages (volume 1, § 98) says : “If a private structure or other work on land is the cause of a nuisance or other tort to the plaintiff, the law can not regard it as permanent, no matter with what intention it was built; and damages can, therefore, be recovered only to the date of the action. So, where a stream is wrongfully obstructed by a private dam or canal, the plaintiff* injured by it can recover compensation only to the date of the writ. So, in an action for obstructing the plaintiff’s light, the plaintiff* can recover only to the date of the writ; and the same is (rue where the defendant wrongfully filled a canal, flowed the plaintiff’s land, etc.”
This question was passed upon by this court in the case
In the case of Hargreaves v. Kimberly, supra, Johnson, P., further says : “It seems to me that in all eases where the cause of the injury is in its nature permanent, and a recovery for such injury would confer a license on the defendant to continue the cause, the entire damage may be recovered in a single action ; but where the cause of the injury is in the nature of a nuisance, and not permanent in its character, but of such a character that it may be supposed that the defendant would remove it, rather than suffer at once the entire damage which it might inflict if permanent, then the entire damage can not be recovered in a single action, etc.”
Now, rvhen we refer to the declaration in the case under consideration, it does not appear therefrom what kind of a boom belonged to the defendant at the date of said lease. It is, however, averred that “on or about the 1st day of
The case of Hargreaves v. Kimberly, supra, was reported in the American Reports (volume 53, p. 121) and a valuable note appended thereto, citing many authorities, and, among others, the case of Canal Corp. v. Hitchings, 65 Me. 140. The action was trespass for filling about two hundred yards of canal, and the justice instructed the jury, inter alia : “Whatever diminution there is in the value of the property by reason of the trespass is an element of damage.” The defendant excepted to this instruction, and it was held erroneous ; that the recovery should have been limited to such damages as were sustained down to the commencement of the action. Walton, J., writing the opinion, said: “It is now perfectly well settled that one who creates a nuisance upon another’s land is under a legal obligation to remove it, and successive actions may be maintained until he is compelled to do so.”
The doctrine of all the cases is that a recovery of damages for the erection of a building or another structure upon another’s land does not operate as a purchase of the right to have it remain there, and that successive actions may be brought for its continuance until the wrongdoer is compelled to remove it. As a necessary result of this doctrine, it has been held, and we think correctly, that, in the first action brought for such a trespass, the plaintiff can recover such damages only as he had sustained at the time when
In the light of these authorities our conclusion is that the court erred in allowing evidence to go before the jury as to damage that might occur to the plaintiff’s land by future washing, and in allowing the plaintiff to show by testimony the condition of the river bank in front of his land at the time of the trial. Bor these reasons our conclusion is that thevenlict must be set aside, the judgment reversed, and the cause remanded for a new trial, with costs to the plaintiff in error.