McCray v. Town of Fairmont
| Decision Date | 15 April 1899 |
| Citation | 33 S.E. 245,46 W.Va. 442 |
| Parties | McCRAY v. TOWN OF FAIRMONT. |
| Court | West Virginia Supreme Court |
Submitted January 30, 1899
Syllabus by the Court.
1. A municipal corporation is not liable for damages to a lot by reason of change of a street's grade operating upon surface water, though it may increase it; but if the work operates, as its direct effect, to collect and cast water in a mass on the lot, the corporation is liable.
2. A declaration against a municipal corporation for damages from flowage of water upon a lot from a change of grade of a street must allege that by the work water was collected and cast in a mass upon a lot.
3. In an action against a municipal corporation for damage to a lot from change of grade of a street, the measure of damages is the difference between the market value of the lot immediately before and immediately after the change.
4. The practice of asking several instructions, expressive of the same law, condemned.
Error to circuit court, Marion county; John W. Mason, Special Judge.
Action by Charles E. McCray against the town of Fairmont. Judgment for plaintiff. Defendant brings error. Reversed.
W. S Haymond, W. S. Meredith, and E. F. Hartley, for plaintiff in error.
B. B Dovener and U. N. ArnETT, JR., for defendant in error.
Charles E. McCray brought an action on the case in the circuit court of Marion county against the town of Fairmont to recover damages to buildings on a lot resulting from a change of grade in a street, in which there was a verdict for $800, and judgment, and the town has brought the case here.
The first point is a demurrer to the declaration, which was overruled. The cases of Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266, Yeager v. Town of Fairmont, 43 W.Va. 259, 27 S.E. 234, and Clay v City of St. Albans, 43 W.Va. 540, 27 S.E. 368, hold that flow of surface water upon property, though it injure it, caused by change of grade of a street, will not render a municipal corporation liable to damages, but if the corporation thereby collects a body of water, so that it ceases to be a mere drainage of surface water, and casts it in a mass upon a lot, it is liable. Therefore a declaration must allege that the corporation did thereby collect and cast water in a mass upon the lot, because, unless such is the case, there is no liability. This declaration does not do so, and I think that those cases, notably the Yeager Case, would sustain the demurrer. The declaration only alleges that, by reason of the change of grade, "the drainage of water upon said plaintiff's lot, the foundation and wall of said houses have become dampened and weakened," so as to injure, etc. A certain kind of drainage is actionable, another kind not, and the declaration must state the kind that is actionable. This does not. In fact, the word "drainage" is used, which rather imports surface drainage, unless accompanied by averment telling what kind.
The second assignment of error is that the court refused to exclude all evidence of McCray tending to show damage from change of grade of any other street than Madison, or of any part of Madison street, except that part only in front of this house, as the declaration only assigned the change in grade of that...
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