127 Va. 528 | Va. | 1920
delivered the opinion of the court.
Mrs. Wells (the defendant in error) recovered a judgment against the town of Farmville for §1,000 damages for injury to her property occasioned by throwing surface water back on her premises.
The following errors are assigned in the petition for a writ of error: (1) Overruling the demurrer to the declaration, (2) refusing to grant a continuance, (3) refusing to set aside the verdict as contrary to the law and the evidence, (4) granting instructions for the plaintiff, and (5) refusing to grant instructions for the defendant. There was not only abundant evidence to support the verdict, but the decided preponderance of the evidence was in favor of the finding. So that the verdict could only be set aside, if at all, because it was contrary to the law. It would not be useful or edifying to discuss the assignments of error seriatim, as all of them except No. 2 on the subject of the continuance, involve the application of the law on the subject of surface water to the facts of the case.
In Smith v. Alexandria, 33 Gratt. (74 Va.) 208, 215 (36 Am. Rep. 788), the facts and the holding of the court thereon are stated as follows:
“The plaintiff is the owner of a corner lot, at the inter*532 section of two streets in the city of Alexandria,, which lot was enclosed, occupied and used by him as a coal and wood-yard and for other purposes. There was a ditch or gutter in front of the lot on each side which conveyed all the surface water that flowed by, from, and over the lot to the intersection of the said streets, and thence, by the means of other ditches and gutters, it passed on and into the proper channel and was carried off. The city council in grading these streets elevated them three feet in front of the plaintiff’s lot, filled up the ditches and gutters, and did not cut' others or provide other means for the water to flow on and escape as formerly; and thus the water was stopped and thrown back on the plaintiff’s lot, causing the damage specified in the declaration, for which compensation is demanded.
“These acts of the city council are all charged to have been done ‘negligently, carelessly,’ etc.; for the terms, ‘negligently,’ ‘carelessly,’ etc., as used in the declaration, should be taken, we think, as applied and intended to be applied not only to the elevation of the streets, but also to the filling up of the then existing ditches and gutters and the omission to cut others or supply other.means for the escape of the water. The complaint is not of the mere grading of the streets, a work which the council was authorized by law to do, but of the negligent and improper manner in which the work was done, causing damage. Whether in grading it was necessary to fill up the ditches and gutters, and if necessary, whether it was practicable to substitute other sufficient ditches and gutters to take the water off, are matters of fact to be considered on the trial, in connection with the other circumstances of the case, in determining the question of negligence in the execution of the work.”
In Powell v. Wytheville, 95 Va. 73, 75, 27 S. E. 805, 806, it is said: “The complaint in this case, as stated in the declaration, is not for the mere work which was done on the
In McGehee v. Tidewater Railway Co., 108 Va. 508, 62 S. E. 356, the facts were very similar to those in the case at bar. They are stated in the opinion as follows: “At the time of the commission of the grievance complained of, the plaintiff in error (the plaintiff below) was carrying on the business of a florist in the city of Roanoke. On the rear side of the lot on which the business was conducted, there is a depression along which the surface water, which gathers from the surrounding water shed, was accustomed to flow into another depression running from west to east and emptying into Roanoke river. Although storm water habitually flowed along this swale, the bottom was covered with sod and was not abraded. The defendant in error acquired a strip of ground adjoining the plaintiff’s lot on the south, for its right of way and passenger station and approaches; and, in the construction of its roadbed, and in elevating its property to a uniform grade by filling in the land up to the plaintiff’s line, it built across the depression, which likewise passed over the company’s land, without making provision for the escape of surface water through its premises by culvert, drain, or otherwise. The result of that method of construction was to retain and cast back the waters upon the plaintiff’s lot. Consequently, in the fall of 1906, after a heavy and protracted rainfall, the
Upon this state of facts the court said:
“In the leading case, in this State, of Norfolk, etc., R. Co. v. Carter, supra (91 Va. 587, 22 S. E. 517), the court approved an instruction which told the jury ‘that any interference with the drainage of the plaintiff’s lands or the flow of surface water which could not be prevented by the proper and skillful construction of defendant company’^ road with proper and skillfully constructed culverts, was proper to be taken into consideration by the plaintiff when the defendant company purchased its right of way from the plaintiff; and if the jury believe from the evidence that the railroad through plaintiff’s land was properly and skill-. fully constructed, with properly and skillfully constructed culverts, in proper numbers, and the same have been kept in proper order, then they cannot assess any damages against the said defendant company on account of ponds or of accumulations of water, though caused by the building and construction of said road.’ In that instruction the principle is recognized that proper and skillful railroad construction calls for the building of necessary culverts to take care of the flow of surface water.
“So, also, in Railway Company v. Chapman, 39 Ark. 463, 43 Am. Rep. 280, cited with approval in the above case, it is held: ‘A railway company may not be allowed, by building its roadway across a natural drainage of surface water, to obstruct the customary flow, to the detriment of upper proprietors, but must supply reasonable means of passing it through the roadbed, so as to save the upper proprietors harmless to the same extent a,s before.’ The*535 court furthermore observes, at pages 288-289: ‘Its only property, was its right of way. It was not necessary to the enjoyment of that that the bed should be solid throughout. The damage, of course, was unnecessary, and was not the result of a fair and proper exercise of its franchise. It was not reasonable that it should render so much property useless when it might so easily have prevented it without detriment to its operation. It ought not to be allowed to protect itself in an obvious wrong by any technical distinction between running and surface water/
“It is strongly argued that the case also comes within the influence of section 58 of the Constitution, which de'clares that the General Assembly ‘shall not enact any Jaw whereby private property shall be taken or damaged for public uses, without just compensation/ Swift, etc., v. Newport News, 105 Va. 108, 52 S. E. 821, 3 L. R. A. (N. S.) 404; Tidewater Ry. Co. v. Shartzer, 107 Va. 562, 59 S. E. 407. We do not deem it necessary, however, in this instance-to consider the scope of that provision.”
The last mentioned case is so similar to the case at bar that we might well have rested our conclusion on that case alone.
The declaration in the case at bar is not as specific in some particulars as it should have been, but after setting out in substance the location and ownership of the plaintiff's lot, it alleges that the town raised the grade of Pine street, and did so wrongfully, negligently and unlawfully, in that it failed to provide “proper drains and culverts,’ across or under said street, to convey the storm or surface water off of the premises of the plaintiff,” and in consequence thereof the injuries complained of were inflicted. The topography of the lot should have been described with greater particularity, but no bill of particulars was asked for by the defendant, doubtless because the locus in quo was well known to all of the parties, and it is manifest that
The rulings of the trial court on the instructions were not prejudicial to the defendant, and the verdict was amply supported by the evidence.
Affirmed.