43 W. Va. 259 | W. Va. | 1897
This was an action of trespass on the case brought by George G. Yeager and M. E. Yeager against the town of Fairmont, in the Circuit. Court of Marion county, to recover damages alleged to have been occasioned by a change of grade in the streets of said town adjoining the property of the plaintiffs. A demurrer to the plaintiffs’ declaration was interposed by the defendant, and upon consideration was overruled by the court, and thereupon the defendant plead not guilty, and issue was thereon joined. On the 12th day of July, 3895, the case was submitted to a jury, which resulted in a verdict, for the plaintiffs for the sum of two thousand live hundred and fifty dollars; and thereupon the defendant moved the court to set aside the said verdict, and grant it a new trial, upon the ground that said verdict was contrary to the law and the evidence, and because of the improper instruction given by the court to the jury at the instance of the plaintiff's, and because of the variance between the allegations of the declaration and the proof, and because the damages assessed by the jury were excessive; which motion was overruled by the court, and the defendant excepted to said ruling, and asked the court to certify the evidence. On the 18th of July, 3895, judgment was rendered upon the said verdict
The first error assigned and relied upon by the defendant is to the action of the court in overruling defendant’s demurrer to plaintiff’s declaration. Counsel for the plaintiff in error insist that the court erred in overruling said demurrer for the following reasons :
The declaration alleges that the plaintiff' George G. Yeager was the owner in fee simple of the real estate claimed to have been injured, and that the plaintiff M. E. Yeager was the owner and possessor of a life estate, in the same; that this is impossible. A fee simple being the highest estate known to the law, it is the entire and absolute property, and it is impossible for one plaintiff to own the fee simple while the other owns a life estate in the same property at one and-the same time; citing Tied. Real Prop. § 36, for the definition of “fee simple,” where it is said: “ ‘Fee simple’ is a freehold estate of inheritance, free from conditions and of indefinite duration. It is the highest estate known to the law, and is absolute, so far as it is possible for one to possess an absolute right of property in lands.”
It is also contended that allegations of special title must-be proved as laid, citing 1 Chit. PI. 379, 380, 384, and insisting that it is absurd to contend that the special title as laid in the declaration can be proved.
By referring to the declaration, it will be seen that, it is alleged that, at the time of' the committing by the defendant of the grievances hereinafter mentioned, the said plaintiff, George G. Yeager, was and is the owner in fee simple, and the saidM. Yeager was the. owner and possessor of a life estate in a certain parcel or lot of ground lying within the corporate limits of the. said town of Fair-mont, Marion county, W. Ya., which is described in the declaration, and which said George G. Yeager and M. E. Yea-gc-r, as joint plaintiffs, complained was damaged by raising the grade of the street adjoining thereto in said town in the manner set forth in the declaration. The contention of the defendant is that this was a misjoinder of plaintiffs, and the. first question for consideration is Avhether this question can be raised by demurrer, or whether it should have been xwoperly raised by a plea in abatement. The
Noav, Avhen Ave look to the declaration, it is apparent the gravamen of this action consists in the alleged injury to the storehouse therein described. It is alleged that the plaintiff George G. Yeager Avas, and still is, the oAvner in fee simple, and the plaintiff M. E. Yeager Avas the -OAvner and possessor of a life estate, in the lot or parcel of ground therein described upon which said storehouse is situated, and that the damage complained of Avas occasioned by raising the grade of the streets adjoining said lot tAArenty-eight inches higher than the floor of said storehouse, thereby obstructing the free ingress and egress of said plaintiffs and their customers and patrons in their said business to and
It will be perceived that, this declaration claims damages for three different and distinct causes of action, to wit: Injury to the life estate, of which M. E. Yeager is alleged to have been the owner and possessor; the injury to- the fee simile, by which is evidently meant the remainder or reversion to which George. G. Yeager was entitled; and the injury to the joint mercantile business in which said plaintiffs were engaged in said storehouse. If it was proper to combine all three of these causes of action, it is difficult to determine in what manner the damages recovered should be apportioned among them. If the suit was in equity, the value of the life estate might be ascertained, and yet it would be difficult to say what portion of the damages should be awarded the. life tenant and what portion to the. remainder-man, and equally difficult to ascertain what portion the plaintiff's were entitled to jointly by reason of the injury to their mercantile business. A case involving several questions similar to the one under consideration wras recently decided by this Court, and will be found in 42 W. Va. 300 (26 S. E. 266). I refer to the case of Jordan v. City of Benwood (decided November 18, 1896), in which it was held “that a city is not liable for damages to a lot owner because change of grade of a street prevents surface water of a lot from flowing off. It is not different even if the surface, water is, by reason of such change, of grade, increased in quantity uj>on the lot, if not cast in a mass or body upon the premises. Nor is a city liable for mere surface water Rowing- from, the street upon an adjoining lot.” And it was further held in said case that,
Returning again to the question of the liability of the corporation by reason of raising the grade of .the streets, we find that Elliott, Roads & S. p. 336, says: “The general rule is well established that a municipal corporation is not liable for consequential damages necessarily caused in grading a street, unless the corporation is made liable by the constitution or by some provision in its charter or of the statutes of the state.” On this same question, 2 Dill. Mun. Oorp. § 989, in speaking offlthe change of grade in streets, says: “In connection with the principle just mentioned, that there is no implied or common-law liability for doing with proper care an act which is either directed or authorized by a valid statute, may be noticed the power of municipal corporations to grade and to change established the grade or level of their streets, though the
Reversed.