Bailey v. S. J. Groves & Sons Co.

• Decision Date: 30 November 1976
• Docket Number: No. 13630,13630
• Citation: 230 S.E.2d 267,159 W.Va. 864
• Parties: Irma BAILEY v. S. J. GROVES & SONS CO.
• Court: West Virginia Supreme Court

Page 267

230 S.E.2d 267

159 W.Va. 864

Irma BAILEY v. S. J. GROVES & SONS CO.

No. 13630.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1976.

Syllabus by the Court

1. Liability for trespass to real property exists only where there is an intentional intrusion, negligence, or some extrahazardous activity on the part of the alleged wrongdoer.

2. In an action for trespass brought against a private contractor for damage to real property occasioned while the contractor is engaged in the construction of a public facility under contract with the State, it must be shown that the contractor independently committed an actionable trespass, i.e., that he acted intentionally, negligently or employed a dangerous instrumentality, in order that the property owner may recover.

Harold D. Brewster, Jr., Hudgins, Coulling, Brewster & Morhous, Bluefield, for appellant.

Walter W. Burton, Princeton, for appellee.

BERRY, Chief Justice:

The S. J. Groves & Sons Company, the defendant in an action in the Circuit Court of Mercer County for damages for trespass to real property, appeals a summary judgment entered against it.

The facts are without dispute, a stipulation of all material matters having been made by the parties in the trial court.

In 1970, the S. J. Groves & Sons Company entered into a contract with the West Virginia Department of Highways to build a segment of highway between Princeton and Oakvale in Mercer County, West Virginia. By the terms of the contract, Groves was to construct the highway in strict accordance with design and specifications established by the Department of Highways. Groves began work on the project on July 6, 1970.

Irma Bailey, the plaintiff below, owned and occupied a piece of land at a location in Mercer County known as Possum Hollow. Mrs. Bailey's property was immediately below and approximately 200 to 300 yards from a point where construction was to be undertaken by Groves.

By April 15, 1972, the highway construction across Possum Hollow above the Bailey property was approximately 95 percent complete. Only the paving of the highway and the installation of guardrails and signs remained to be done. On that day, heavy rains fell in the area of the construction site. The result of constructing the project in accordance with the design and specifications of the Department of Highways was to channel large quantities of surface water from the vicinity of the new highway into two rock-guttered drains and then into an existing stream which flowed down Possum Hollow and through the Bailey property. The quantities of water so directed caused flooding of the Bailey land and the irreparable damage of a vehicle bridge on the property.

By July, 1973, Groves had completed all work under the contract in the Possum Hollow area. At that time, heavy rains again fell, and again the Bailey property was flooded and damaged by water and debris.

As a result of the flooding of her property, Irma Bailey initiated an action in the Circuit Court of Mercer County against the appellant to recover for the damage. The action was based on trespass and the first complaint alleged that Groves '. . . did enter onto and upon, trespass and cause damage to the real estate owned by the plaintiff . . .' Thereafter, an amended complaint was filed which alleged that Groves '. . . did cause to be entered upon and onto the plaintiff's property a large amount of rocks, water and other debris and trespassed and caused damage to said real estate.'

Following preliminary proceedings, both parties made motions for summary judgment on the undisputed facts as stipulated. By their stipulation, the parties agreed that Groves, in constructing the highway, acted completely and strictly in accordance with the design, plans and specifications prepared and mandated by the Department of Highways and that it was not guilty of any negligence or improper construction in its work. After a jury trial, held for the sole purpose of determining the amount of damage to the plaintiff's property, the circuit court entered summary judgment on behalf of the plaintiff and awarded damages against Groves in the amount of $4,000 in accordance with the jury's verdict.

The sole issue in this case is whether the defendant, S. J. Groves and Sons Company, is liable for damage to the plaintiff's property even though it constructed the highway in strict compliance and conformity with the design, plans and specifications prepared by the West Virginia Department of Highways and was not guilty of any negligence in the course of its activities.

During the proceedings before the circuit court, the plaintiff proceeded on a theory of absolute liability for trespass to her property, resulting in damage to it. Neither the complaint, the amended complaint, nor the stipulated facts contain any allegation of any intentional intrusion, negligence or extrahazardous activity on the part of the defendant. Thus, it is apparent that the trial court granted plaintiff's motion for summary judgment on the theory that a trespass was actionable on a strict liability theory. This is clearly indicated in the trial court's finding and its conclusion of law that '(t)here was a trespass by the defendant which resulted in damage to the plaintiff.'

The common law relating to trespass, as it originally developed in England, held that a defendant was liable not only for negligence for personal injuries caused to a person, but was absolutely liable for damage caused to property of a person. This strict liability approach appears to have been repudiated by the English courts ^* and is not the law at the present time in all states in this country where the issue has been decided. Wisconsin Power & Light Co. v. Columbia County, 3 Wis.2d 1, 87 N.W.2d 279 (1958); Gallin v. Poulou, 140 Cal.App.2d 638, 295 P.2d 958 (1956); Phillips v. Sun Oil Co., 307 N.Y. 328, 121 N.E.2d 249 (1954); Brown v. Collins, 53 N.H. 442 (1873). The strict rule has also been rejected by the Supreme Court of the United States. Parrot v. Wells, 15 Wall. 524, 21 L.Ed. 206 (1873).

The widely accepted modern rule in this country is that liability for trespass to property can only be found where there is an intentional intrusion, negligence, or some extrahazardous activity on the part of the alleged wrongdoer. Prosser, Law of Torts § 13 (3rd ed. 1964); 75 Am.Jur.2d Trespass § 6 (1974). This rule is stated in the Restatement (Second) of Torts, § 166 (1965) as follows:

'Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another, or causing a thing or third person to enter the land does not subject the actor to liability to the possessor, even though the entry caused harm to the possessor or...