Belhassen v. Town of Iaeger
| Citation | 166 S.E. 10,112 W.Va. 598 |
| Decision Date | 04 October 1932 |
| Docket Number | 7284. |
| Parties | BELHASSEN v. TOWN OF IAEGER. |
| Court | Supreme Court of West Virginia |
Submitted September 27, 1932.
Syllabus by the Court.
Five-year limitation applicable to actions for damages for property taken for street improvement held not to commence until 60 days after completion of improvement (Code 1923, c 47, § 49c. (13).
Municipality in action for damages for property taken for street improvement cannot assert unconstitutionality of statute postponing commencement of action (Code 1923, c. 47, § 49c. (13).
Code 1923, c. 47, § 49c. (13), provides in substance that no suit to recover damages arising out of street improvement shall be commenced "within sixty days after the completion of the improvement. ***"
By virtue of Code 1923, c. 47, § 49c. (13), the statute of limitations applicable to actions for damages due to street improvements does not begin to run until the accrual of the cause of action, sixty days after the completion of said improvement.
Error to Circuit Court, McDowell County.
Action by Sarah Belhassen against the Town of Iaeger. To review a judgment in favor of the plaintiff, the defendant brings error.
Affirmed.
Crockett & Tucker and Charles A. Tutwiler, all of Welch, for plaintiff in error.
Grover C. Worrell, of Mullens, and Harman & Howard, of Welch, for defendant in error.
This is an action to recover damages for property taken in widening and improving a street in the town of Iaeger, McDowell county. The improvement was completed on November 30, 1924 and this action instituted within five years and two months thereafter. From a judgment in favor of the plaintiff in the sum of $1,625, defendant brings error.
The plaintiff, on September 12, 1923, purchased the lot in question from one Iafolla, the latter having shortly prior thereto purchased the same from certain church trustees. It appears from the record that the trustees, prior to their sale, together with other property owners, had agreed to give the town fourteen feet for the widening of Center street, in exchange for a like footage in the rear of said lots by the abandonment of Main street. Shortly after plaintiff had purchased the property, she was ordered by the mayor to, and did, move the building back, so that a portion thereof rested on what had formerly been Main street.
Defendant contends in this court, as it did in the court below (1) that plaintiff had notice of the agreement between the trustees and the town officials and was therefore bound thereby; (2) that the action was not brought within five years from the time the defendant first exercised any rights of ownership over the property taken, and was therefore barred by the statute of limitations; and (3) that the verdict was excessive.
As to the first point, the plaintiff stated unequivocally that she knew nothing of the understanding. So, in the absence of a minute on the records of the town, or evidence of actual notice, she is not bound. The mere fact that she moved her building back on orders from the mayor of the town is not sufficient to impute notice to her of the alleged understanding between the town and the trustees, her predecessors in title. The fact that the street in rear of the property was abandoned, and that plaintiff moved her building back so that a part of it rested on the old abandoned street does not show knowledge, because where a town or city abandons a street or alley, the same ordinarily reverts to the abutting property owners.
The law is well settled that five years is the limitation period prescribed for actions to recover damages to real estate occasioned by the alteration of street grade or by an improvement in the street of a municipality. Kinney v. Town of West Union, 79 W.Va. 463, 91 S.E. 260. But when does the period begin to run? The town, as already noted, would have it begin as of the time the defendant first exercised...
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