67 W. Va. 39 | W. Va. | 1910
Lead Opinion
Assigning numerous errors, John Strosnider complains of a judgment of the circuit court of Mingo county, in an actioh brought against him by Ed L. Walker and Kenna Blackburn, for damages, resulting to them from the fall of a brick building in which they were conducting a printing business, the ground of Strosnider’s liability being negligence in effecting an excavation on his own adjoining property, in consequence of which
According to the contentions found in the briefs, the case involves primarily the relative rights of adjacent owners in respect to lateral support, and secondarily, the right of a lessee in that respect. The ascertainment of these rights and reciprocal duties will settle most of the questions discussed. The sufficiency of the declaration, the propriety of rulings on instructions and the admission and rejection of evidence, constituting the subjects of complaint in the assignments of error,- must, in most instances, be determined by the same general principles.
An owner of land is ex jura naturae entitled to lateral support for his soil, but not for buildings erected thereon. In other words, an excavation, made by an adjacent owner, so as to take away the lateral support of his neighbor’s ground and .cause it, unburdened by buildings or structures of any kind, to fall, slide or break awajq subjects the former to liability for the injury done, no matter how carefulty he may have made the excavation. Gildersleeve v. Harmon, 109 Mich. 431; Railway Co. v. Bonhayo, 94 Ky. 67; Ulrick v. Loan & Trust Co., 2 S. D. 283, 3 S. D. 44; Stevenson v. Wallace, 27 Grat. 77; Moody v. McClelland, 39 Ala. 45; Oneil v. Harkins, 71 Ky. 650. But, if his excavation is so made that the adjacent land would not have fallen, slid or spread by its own weight, yet, weakened by the excavation, did so by reason of the weight of buildings or structures thereon, he is not liable, provided he exercised prudence, care and caution in effecting the excavation. Shrieves v. Stokes, 47 Ky. 453; City of Quincy v. Jones, 76 Ill. 231; Block v. Haseltine, 3 Ind. App. 491; Larson v. Railway Co., 110 Mo. 234. This, however, is subject to an important exception. If, by grant, express or implied, the owner of the adjoining land has acquired a right of lateral support for his buildings in addition to that given him by law for his soil, the liability of the disturber by excavation is absolute in respect to the buildings as well as the soil, and no inquiry arises as to whether the work was done negligently or unskilfully. Stevenson v. Wallace, 27 Grat. 77; Turnstall v. Christian, 80 Va. 1; Burwell v. Hobson, 12 Grat. 322; Sanderlin v. Baxter, 76 Va. 299; City of Quincy v. Jones, 76 Ill. 231; 2 Min. Inst. 26. This exception to the general rule is inapplicable here, there
The duty on the part of the excavator, as regards buildings on adjacent land, when no right of lateral support therefor has been acquired, results from the relative rights of the parties and legal principles, governing conduct. As an adjacent owner has no right of support for his buildings, he has no property right in the form or nature of an easement in his neighbor’s lands. If, therefore, the latter remove a part of his land so as to endanger the building of the former, he destroys no property right, — takes away nothing that belongs to the former. It does not follow, however, that he owes him no duty in the premises. Though he has complete dominion and power over his own land and may do with it what he pleases, he is nevertheless bound, agreeably to the maxims, "Sic uiere tuo ui alienum non laedas” and “Prohibetwr ne quis faciat in suo quod nocere .posit alieno” to use his property in such a manner as not to injure his neighbor’s. This gives the latter no property right in the land of the former. It merely gives a personal right against him. It places a restraint upon his conduct. For any lawful purpose, he may use his property, but he must use it in a lawful, that is, careful, manner. In other words, he must execute the work, as far as is reasonably practicable, and not unduly burdensome, with a view to the safety of the buildings on the adjacent property. But for this rule, he might go at any hour of the day or night, without having given any notice to the adjoining owner, indicating when, how or to what extent he intended to alter the condition of his property, and make an excavation for a celler along the entire wall of a heavy valuable building, knowing it.would fall in consequence thereof, and yet intending to replace, the earth removed by a wall. He would be under no duty to vary the mode or manner of his work in the slightest degree, in respect to the time thereof or otherwise, in the interests of the safety of the building. Having thus made the excavation, he could build his wall at his leisure and would be under no duty to prosecute the work diligently even though it should be apparent that delay in this part of the work would endanger the building. Such conduct would be reckless, careless and wanton, in view of the ease with which the mode of work could be varied, in respect to
We come now to the ínost difficult question involved, namely, the kind of measures to be taken for the safety of the adjacent building and the degree of care to be exercised. On this subject, the decisions are indefinite and fail to indicate, with any degree of certainty or uniformity, what measures are to be taken. This seems, in some cases, to grow out of mental confusion, produced, by the rule of property, denying right of support fox buildings in adjacent land, and a failure to distinguish between lack of property right in the owner of the building, because he is not entitled-to support in the adjacent soil, and the protection for his building which .the law gives by imposing restraint upon the conduct of the owner of the adjacent land, in respect to the manner of his doing lawful acts thereon. This right to immunity from injury by useless and negligent conduct seems, in many instances, to have been almost entirely overlooked. Starting with the proposition that the adjacent owner has .an absolute right- of property, some of the decisions run to these conclusions: that he need do nothing more than exercise such care in digging as not to disturb his neighbor’s soil, or cause it to fall into the excavation by reason of its own weight; that he may remove every particle of the soil right up to the wall and along the whole line thereof and let it stand in that condition as long as he pleases, provided the soi-1 itself, unburdened by the building, would not fall in; and that, having done this, if the weight of 'the building crushes down the -embankment and loss results, there can be no recovery. This limits the duty of exercising care to the mere act of digging. It also limits it to the protection-of the soil and not the building. It "amounts to no requirement of any care at all, in the prosecution of the
Such conclusions seem to result, in part, from misinterpretation of some of the early American cases, such as Thurston v. Hancock, 12 Mass. 220, Gilmore v. Driscoll, 122 Mass. 199, Lasala v. Holbrook, 4 Paige 169, and McGuire v. Grant, 25 N. J. L. 356. In Thurston v. Hancock, the plaintiff sought to recover, not on the ground of negligence in the work of excavation, or alteration of the condition of the adjoining property, but merely on the ground that the defendant had taken away the adjacent land. The declaration contained no charge of negligence. It asserted nothing more than a right of support in the adjacent land. After the excavation had been made, the owner of the house had left it and taken it down. The court held he could not recover for anything except the soil he had lost. In Gilmore v. Driscoll, no building was involved. There was nothing on the land adjacent to the excavation but a fence, a few currant bushes and some modern buildings. After the excavation had been made, a portion of the soil fell away, carrying with -it the fence and currant bushes, but not any buildings. The buildings were not endangered, nor did they caüse the 'soil to break away by their pressure. The court
The view that the excavator’s duty does not extend beyond abstention from affirmative wrongful acts, such as we have indicated, seems to rest also upon the admitted duty of the owner of the building, having notice of the work about to be done, to support his own building, if necessary, by bracing, shoring up or underpinning it. It seems to us that this duty
The undue latitude seemingly or actually allowed to the excavator in some decisions seems to result also from inattention to differences in circumstances, disclosed in some of the earlier cases, and an attempt to generalize more extensively than the nature of the subject warrants.' A case of alteration by excavating and removing the soil on land adjacent to a building for the purpose of replacing it by a wall to be used as the foundation of a new building to be erected at once, is often treated as a mere matter of excavation and nothing more. Now, in cases of this kind it is plain that the excavation and removal of soil is a mere incident of the actual work intended and executed. Nevertheless there is a tendency, in som.e of thes decisions, to deal with cases of this kind on the principles applied to mere excavation and removal of soil or other substance without replacing it, or any intention to replace it, as in the case of an adjoining owner mining the coal from his land, or grading his lot down for use as a lawn, or constructing a bathing pool or fish pond. In instances of the latter
'Nor is there lack of authority to this effect. In Austin v. Railroad Co., 25 N. Y. 334, the work of excavation was commenced in October or November, 1851, and might have been completed within two or three weeks,'but was not finished until about August, 1852. The excavation was carried within four feet of the plaintiff’s warehouse, but entirely confined to the land owned by the defendant. After the excavation was done, the work was suspended from time to time for ‘considerable periods, leaving the plaintiff’s building exposed without protection against the action of water and ice. Piles were driven by ■ the defendant after the excavation had been made, but they were so driven as to crack the walls of the plaintiff’s building, which, together with the action of the water, in undermining the building, caused the walls to fall in May, 1852. With proper and sufficient dispatch, the work could have been done so as not • to have injured the building. No injury would probably have occurred if, instead of excavating from the 'cut towards the plaintiff’s building, a trench had been dug across the pier at the north end. of the building, and the south end wall of 'the cut built before the excavation was begun. The plaintiff recovered a judgment and it was. affirmed. Allen, Judge, said whatever were the rights of the defendants in the occupation and ‘improvement of their own premises, they were 'held to ordinary care and diligence in such occupation and improvement. A party is not execused from tire consequences of his own negligence by the fact that the negligence occurred upon his own premises, and in the performance of an act lawful in itself. A lawful act may not be performed in a careless and negligent manner to the injury of a third person with impunity. In Shrieve v. Stokes, 8 B. Mon. (Ky.) 453, the court held that evidence of what was usual and customary in cases exactly similar to the one on trial was admissible, and that usage and even the opinion of skilful men is admissible as to the manner of digging and removing the earth. After having said this, the court proceeded to limit the requirement of care to the mere act of digging and removing the earth, as if that were the only thing involved in the case. The contradiction between this conclusion and that expressed in the New York case is obvious.
The adoption of these principles is simply the recognition ■and adjustment .of court action to that which is so obviously just, fair and reasonable that the parties themselves generally accommodate themselves to it without controversy or compulsion. We have testimony to this effect in the record in this case. The architect who prepared the plans for the defendant’s building said: "My usual way of doing that work was going under the wall and underpinning it, that is, going down -and dig a hole four feet wide down by the side of the building to the depth we were to go with the basement and after getting under the wall to build up a tier and then sink another place six or eight feet deep and dig another hole and doing the same thing, and then go back and dig the space between and go on.” An expert witness said, in response to a question as to the usual, ordinary, prudent and workmanlike way of doing such work, the work ought to have been done in sections or some other way to have secured the bank from dangerous caving. Another said the ordinary safe methods to be used in excavating a site for a building of the character described would be to sheathe or brace
Much of the confusion in the decisions seems to grow out of” uncertainty in the minds of the court concerning the function of notice to the owner of the building. Some of them seem to say the excavator, after having given notice, or if the owner of.the building has knowledge of his intention, may proceed with his work in any manner he may choose, and it is then the duty of the owner of the building to take care of himself. We have already said enough to indicate the inconsistency of this position with the views we entertain. He ought to have notice so that, after the excavator has done all that is reasonably prudent for the safety of the building, he may adopt additional measures so as to make himself absolutely safe, to give him an opportunity to do those things which the excavator is not bound to do. Nor, in speaking of notice, do the authorities seem to observe the distinction that ought to arise from the circumstances. If the excavator intends to put nothing in the place of the earth he removes, and he is not bound to do so, the owner of the building ■ ought to know that. If he does intend to replace it with a building, the owner of the adjacent building may well assume an intention on his part to do those things which he ought to do for the temporary incidental protection of the building. In the other case, he would naturally assume the contrary. And in the case of an excavation for a building, the neighbor ought to be informed, not only that the excavation was being made for that purpose, but the depth to which it is proposed to go below his own foundation. In view of these considerations, we think, the decision, holding the duty to give notice of the excavator’s intention to be an additional precaution, and denying to it the force and virtue of a substitute for the other duties, incumbent upon the excavator, are sound. This view was taken in Bass v. West, 110 Ga. 698; Block v. Haseltine, 3 Ind. App. 491; Ulrick v. Loan & Trust Co., 2 S. D. 285, 3 S. D. 44; and Massey v. Goyner, 4 C. & P. 161. In Lasala v. Holbrook, the chancellor said the English rule required the excavator to give to the owner of the adjacent lot proper notice of the intended improvement and to use ordinary
As the condition of the injured building often injects other questions into cases of this kind and is relied upon here as matter of defense, we observe that defectiveness or weakness in it does not justify negligence or reckless conduct on the part of the adjoining owner, in altering the condition of his property, or excuse him from liability for injury occasioned thereby. He is 'governed by the condition of the building as he finds it, and must conduct his operations accordingly, for these conditions have been previously and rightfully made. To hold otherwise would give one adjacent owner the power to determine what sort of a building his neighbor should erect or in what state of rejjair he should keep it. Defects in the building may be such as to contribute to its injury in case of the removal of the adjacent earth, but the act of constructing it in an unskilful manner, or allowing it to' become defective,would not be the proximate causé of the injury, if it could be deemed negligence. There would be two causes of injury in such case, but the negligence of the excavator, in failing to take reasonable precaution for the safety of the building, however defective it might be, would be the last cause of injury, the nearest in time and, therefore, the proximate cause. Defectiveness of the injured building may mitigate the damages but it does not bar an action for the injury. “But where it is alleged and proved that the defendant so negligently, unskilfully, and improperly dug his own soil that the plaintiff’s house was thereby injured, an action lies: and although it be shown that the house was infirm, and could at all events have stood only a few months, still the plaintiff may recover in proportion to the loss actually suffered, if the jury find that the injury to the house was the consequence of the defendant’s negligence; and in determining
As the nature of the business carried on in the building involved in this case is relied upon as matter of defense, or rather as having contributed to the injury directly and indirectly, it becomes necessary to consider it in the light of that contention. It seems to us that the right to do business in the building stands upon the same legal ground as the building itself. Neither has any right of support in the adjacent soil, but-if the building is entitled to protection from negligent conduct on the part of the adjoining owner, it seems to follow logically that the business he or his tenant carries on in it is entitled to the same protection. The use of the building for a lawful purpose is a valuable right, and the same legal principles that protect buildings should protect the use and' enjoyment of them and those vocations which men see fit to follow. No reason is perceived, therefore, why the excavator should not take notice of the apparent use to which a building is devoted and conduct his operations accordingly. It is suggested in some of the decisions that the owner of a building, seeing an excavation- about to be made on adjacent land, or having been notified of the intention of his neighbor to excavate, may add to the security of his building by removing from it any weighty article he may have there, but it is generally found in those decisions which erroneously, as we think, confine the requirement of care and prudence to the mere act of digging and absolve the excavator from all duty to do anything for the temporary support of the building. In our view, it is unreasonable, because practically unnecessary, to require the owner of a building to move the contents out and
Another ground of defense, requiring consideration of a general principle, is that the acts from which the injury resulted, were done by independent contractors. Generally, the employer is not liable for the wrongful act of an independent contractor, but there are exceptions to the rule. “If the injury results directly from the acts called for or rendered necessary by the contract, and not from acts which are merely collateral to the contract, the employer is liable as if he had himself performed such acts.” 16 A. & E. Enc. Law 196. If the employer actually controls the manner of doing the work, the employment is not independent. Id. 187. “A person or corporation on whom positive duties are imposed by law cannot _ avoid liability for injuries resulting from failure to perform such duties, by employing a contractor for the purpose; nor, in such case, is the fact that the injuries resulted from the contractor’s negligence a defense.” Id. 197. “It has been decided in some cases that adjoining owners owe certain duties to each other which cannot be delegated to a contractor. So it has been held that one who is bound to remove a wall to avoid injury to neighboring property cannot exempt himself from liability by making a contract for the removal of the wall.” Id. 200. From the conclusions we have expressed, concerning the duties a land owner owes to a neighbor in respect to his buildings, when making improvements on his adjoining property, it might follow that these, although not arising out of any right of property
Denial of right of recovery is also based on the fact that plaintiffs were only tenants of the building, without a contract, fixing a definite period of tenancy. Ás the owner of property may, by a lease or otherwise, vest in strangers rights respecting it, large or small, according to his own will and pleasure, and the rights so vested are recognized and protected by law, it would be inconsistent and illogical to say a lessee of a building cannot claim, to the extent of his interest in the use and enjoyment thereof, that protection which the law extends to the owner. Though he is not seized of a freehold estate and is not owner of the land or the building, his right of enjoyment of the same is a valuable one, protected by law, as is also his term. Nor does it seem to us that there is any difficulty, on principle, in reaching the conclusion, that such an interest may be vested in respect to a single floor or room of a building or that a right of possession and use under a verbal lease or letting, as by the month or at will, gives a right of protection. These circumstances make no change in the principle involved. The utmost effect they can have is to vary the extent of the interest and so .limit the right of recovery in respect to its amount, making it commensurate with, and restricting it to, the injury done to the plaintiff, which, of course, cannot exceed his interest or
In view of what has been said, the sufficiency of the declaration is apparent. It sets forth the relation of the adjoining owners, the interest of the plaintiffs as tenants of the second floor of the building, the acts done by the defendant and says he, by himself, agents, employes and servants, injuriously, wrongfully, carelessly ^nd negligently dug out and carried away the soil immediately adjoining the west wall of the building and made a deep excavation on his lot the whole length of the building, and allowed a great volume of water to stand in it for about six days by means of which the building was made to fall to the ground, damaging and destroying the property of the plaintiffs contained therein. No defect is specified in the briefs. There is a mere general criticism, accompanied by a suggestion that consequential damages are not recoverable, since no term is alleged and defined, giving a right t.o substantial damages for injury thereto or destruction thereof, but the right to nominal damages alone clearly sustains the declaration, and we have no hesitancy in saying consequential damages are recoverable in such case.
The defendant owned a valuable business lot, situate in Williamson, facing for fifty feet on Second Avenue and running back between parallel lines to an alley, a distance of one hundred feet. On one side of this lot was the property of one White, a two story brick, on the other side was the property of the plain
Further description of the retaining wall and a recital of the substance of a portion of the evidence are necessary to a clear, understanding of "the rulings complained of. The concrete retaining wall ran back the full length of the Bronson building, distant therefrom four or five feet. It then turned -at right angles and went straight to the rear comer of the .building and across the division Tine a few inches, and then, turning again at right angles, went straight back a few feet beyond said corner. From the corner back to the terminus, the concrete wall was intended as a foundation wall and was seventeen inches thick, corresponding with the brick wall of the Bronson building. The balance of the concrete wall was put in only to protect the Bronson wall, and was only twelve inches thick.
The work was done according to plans, prepared by an architect at the instance of the defendant. The man who did the ex
There is considerable testimony, tending to show that the building gave way at the rear corner, to which the excavation was carried. Walker, one of the plaintiffs, says he was at work on the second floor, when his attention was directed to the fact that the building was about to fall, just a few minutes before it actually collapsed, and then observed the top sill of a window in that corner had cracked and that the corner was sinking, that the wall at that corner slid down into the excavation, and that the condition of the window showed that corner was sinking. Blackburn, the other plaintiff, says substantially the same thing, and, further, that he then went down on the ground near that corner and watched it, until the building fell, observing that it began to give way at that point and the bottom’ part of the wall slid into the excavation and the top fell over in the* opposite direction, that is, from the excavation. lie also says the window, mentioned, was only about one foot from that corner. The witness Dudley also watched that corner as1 the building fell and says all the1walls were springing, but that corner “seemed Í¡o be giving away faster than any other part of the structure” at the time the building fell. Palmer, another witness, says “Well; it looked as if the back corner of the building Was going to fall. I had no idea that the whole building would fall;” and, further, “At first it looked as if it was going to fall over in the basement, and then the whole wall sunk it looked like probably from the front to the back. The rear end sunk faster than the front end. It sunk in that corner and give a quick jump towards the basement and the wall pitched the other way.The lower end of it slid down, but the wall fell the other way.” J. B. Stewart, defendant’s architect, testifying to what he observed at that corner after the fall of the building, said “I think a flue that is shown there, that was broken. The rest of the wall was standing.” The question he- was' answering pertained to the concrete wall, part of which was a retaining wall and the balance a foundation wall for the new building. Pur
Exception was taken to the action of the court in refusing twelve instructions asked for by the defendant. Instructions Nos. 1, 2 and 5 are binding and proceed upon the theory of no right of recovery in the plaintiff, if, in the opinion of the .jury, the excavation would not have caused the soil to cave in or fall away by its own weight. They would have relieved the defendant of any duty to exercise care and caution for the safety of the building. There is a reference to care and prudence in Nos. 1 and 2, but not in respect to the safety of the building. They would have denied right of recovery, if'the jury had found the excavation was made in an ordinary prudent manner. They should have said “and with reasonable care and caution for the safety of the adjacent building” or something else sufficient to-direct the attention of the jury to the duty resting upon the defendant to exercise such care for the safety of the building. That they were improper is obvious,- since they leave out an important element, and would have tended to mislead the jury. No. 2 puts in the additional element of actual knowledge of the beginning and progress of the work by the plaintiffs. As we have shown, neither actual nor formal notice, given by the defendant himself, would have relieved him of liability for negligence and unskilfulness. No. 5 would have denied right of recovery if the adjacent land would not have fallen without a building on it. Under the conclusions already expressed, it was wrong. The object of instruction No. 6 was to impress upon the jury the failure of the excavation to injure another
Defendant’s instruction No. 15 should have been given. It was intended to inform the jury that unless the injury was the natural and probable consequence of negligence or a wrongful act on the part of the defendant and such consequence ought to have been foreseen by him in the- light of the attending circumstances they must find for the defendant. This proposition was not submitted in any other instruction. It is absolutely sound, and no ground upon which it could properly have been refused is perceived.
Plaintiffs’ instructions Nos. 1, 2 and 4 are complained of. The last one is good, but the others are too indefinite in respect to the degree of care exacted. No. 1 told the jury the defendant was bound “to take proper care to avoid injury to the structures on adjoining land” and No. 2 that he must use “due care and skill * * * so as' not to damage the building.” He is not a guarantor of the safety of the’building, and the extent of his duty is to exercise reasonable and ordinary care for,its safety, in view of all the circumstances, known to him or which he ought to have known. If the owner of the building desires further protection for it, he must furnish it himself. The instructions, as given, allowed the jury too much latitude. They would have construed the instructions to mean that the excavator must protect the buildings at all hazards, and make them absolutely safe. In view of the failure of the defendant to have the degree of care defined, as he could have done, we would probably not reverse for this, if it were the only error, but, as the judgment must be reversed for another reason, we sustain the exception to these two instructions.
Bills of exception furnish grounds for numerous complaints, concerning the admission and exclusion of evidence. The opinion of Walker, one of the plaintiffs, as to what caused the building
The depositions of certain expert witnesses were taken in advance of the trial and read in evidence. Hypothetical questions having been propounded to the witnesses and answered, their answers in the depositions were admitted over objection of the defendant. It is said the opinions of these witnesses could not properly be taken in that way, because the evidence of the facts embodied in the questions had not then been introduced. It was subsequently introduced, however, in the trial in which the answers were introduced. No authority is shown, holding it improper and inadmissible to anticipate the introduction of evidence. Those submitted for the proposition do not sustain it. They say opinions of expert witnesses must be based upon evidence, but not that the introduction of the evidence must precede the taking of the expert opinions. Failure to introduce it on the trial would render the opinions, based on assumed facts, inadmissible of course; but no instance of failure in this respect is perceived. The proposition contended for would
Objection was made to testimony relating to the condition of the weather at the time the excavation was made. This was obviously material, relevant and proper, since what would be prudent and careful operation in dry weather might be reckless and negligent in wet weather, softening and weakening the soil.
The court refused to permit a witness to state whether the plan prepared by the architect made reasonable and ordinary provision for the safety of the building; another, to give his opinion as to the effect of the operation of machinery in the building; another, the man who did the actual work, to give his opinion as to whether the work was done in a safe and prudent way; and another, as to whether the retaining wall built was sufficient to protect the building, and whether the work was done in an ordinarily prudent way. In none of these instances, did the defendant indicate what the answers to the questions would have been. No authority need be cited to show the inability of this Court to reverse a judgment, for rejection of evidence, when the record fails to show what the rejected evidence was. We cannot assume the answers to those questions would have been favorable to the defendant.
Evidence of the terms of the contract between the defendant and the man who did the excavating was rejected. We have already shown he was employed only to dig in the manner prescribed by the defendant’s plans and directions. For this reason, the rejected evidence did not constitute any ground of defense, though it would have been admissible for the plaintiff, and the ruling was, therefore, not prejudicial. The action of the court in striking out testimony of the defendant to the effect that the business of the man whom he had employed to do the excavating was “excavating dirt” was harmless for the same reason.
Exclusion of the plans and specifications is the ground of further complaint. There was no error in this. The defendant had already introduced a blue print of all of the plans that was material or shown to be material, namely, the ground plan, showing the temporary retaining wall.
For the error in rejecting defendant’s instruction No. 15,
Rehearing
ON PETITION POR RE-HEARING.
In the petition for re-hearing, it is strongly urged that the trespass to the soil was an invasion of an absolue right of the plaintiffs, imposing liability in any event, whether done negligently or carefully, and that, therefore, the court properly refused, instruction No. 15, applying a rule of negligence. It suffices to say, in reply to this, that the plaintiffs had no interest in the soil. They were mere tenants of the second floor of the building, wrongfully injured, if at all, by failure to exercise reasonable care for the safety of the building.
As the'general principles, declared here are favorable to the ■defendants in error and their judgment is reversed merely for refusal of an instruction, they complain of the adjudication of ■costs against them in this Court. It may be that, owing to the magnitude of the record, the costs here will almost equal their recovery, in case they finally prevail in the litigation, but we are unable to perceive, in this circumstance, any reason for a departure from the statutory rule, giving costs to the party substantially prevailing in this Court. It is the result of the litigation, not the reasoning of the Court nor the importance of the principles involved or decided, that determines the liability for costs.
A cross-assignment of error, not noticed in the opinion, is made one of the grounds of the application for a re-hearing, but, as the judgment has been reversed on other grounds, and the subject matter of the cross-assignment can be important only on the new trial, it may be disposed of on this petition, without a re-hearing. On a very large part of the property injured and destroyed, there was a deed of trust, securing the payment of purchase money, in which A. C. Pinson was the trustee. At the time of the trial of this case, he had another action pending for damages to the property covered by said deed of trust. Having proven that fact in the case, the defendant moved the court to exclude all evidence, relating to that part of the property, and direct the jury not to find any damages on account thereof, and the court sustained the motion. Pinson’s action
That an equitable owner of personal property in possession thereof may sue a stranger, in trespass on the case, for an injury done to it by him, seems to be well sustained by both reason and authority. Independent of his equitable title, he has a special title or interest, his right to possession and use, which is invaded to his injurjq and the gist of the action is injury to the possession. Clay v. City of St. Albans, 43 W. Va. 539; Wilson v. Phoenix Powder Mfg Co., 41 W. Va. 413; 1 Chitty Pl. (11 Am. Ed.) 60-64; Sutherland on Dam., section 1097. From these conclusions, it follows that the court erred in excluding this evidence.
We deem it unnecessary to enter upon an inquiry as to the quantum of damages such an owner may recover, or'the effect of an adjudication in the second suit before judgment in the first, since the record does not disclose what has been done in' the other action. For all we can see, it may have been disposed of by this time. But the authorities here cited clearly indicate the rights of the parties undér all possible circumstances.
We refuse a re-hearing.
Reversed and Remanded for New Trial.