Clark v. Dower
| Decision Date | 29 March 1910 |
| Citation | 68 S.E. 369,67 W.Va. 298 |
| Parties | CLARK v. DOWER et al. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 11, 1910.
Syllabus by the Court.
In an action of trespass on the case for injury to real estate where plaintiff and defendant agree before trial that if plaintiff is entitled to any damage at all it shall be $25 and there is a verdict and judgment for defendant, there is no jurisdiction by writ of error in this court.
If, in such action, defendant does not plead the general issue, but sets up by special plea the right to a private way by prescription over plaintiffs land, such plea does not convert the plaintiff's action into a controversy "concerning a way," within the meaning of section 3, art. 8, of the Constitution of West Virginia, so as to entitle him to a writ of error to this court, when the damage claimed for the trespass is less than $100.
Whether a license, cr right of defendant acquired by prescription, to use plaintiff's land, can be given in evidence under the general issue, in actions of trespass quare clausum fregit discussed, but not decided.
(Additional Syllabus by Editorial Staff.)
In actions for damages to real property, where the damage claimed is less than $100, the Supreme Court of Appeals is without jurisdiction to review the judgment of the circuit court, notwithstanding other matters may have been involved and necessarily decided to determine the main issue in the case, which, if they had been made the direct subject of an action, would have given the right of appeal.
In actions of trespass quare clausum fregit, defendant may, under the general issue, prove want of title or right to possession in plaintiff.
Error to Circuit Court, Mason County.
Action by Herman A. Clark against Patrick Dower, and others. Judgment for defendants. Plaintiff brings error. Dismissed.
Chas. E. Hogg, J. W. English, and John L. Whitten, for plaintiff in error.
Wm. O. Parsons, Rankin Wiley, and Somerville & Somerville, for defendants in error.
Plaintiff brought an action of trespass on the case in the circuit court of Mason county to recover damages for injury to real estate. Defendants did not plead the general issue, but pleaded specially a right of way by prescription over plaintiff's land. To this special plea plaintiff replied generally, and issue was joined. The case was tried by jury on the 12th of December, 1906, resulting in a verdict and judgment for the defendants. To this judgment a writ of error was awarded plaintiff. A number of errors are assigned, but we are confronted at the outset with the question whether, or not, this court has jurisdiction. It is insisted that this court is without jurisdiction, because the action is concerning a matter that is only pecuniary, and the amount in controversy is less than $100. If this be true, we have no jurisdiction of the case. But counsel for plaintiff insist that the real controversy is concerning the right of way claimed by defendants over plaintiff's land, and that this confers jurisdiction without regard to the amount of damages claimed. It was agreed between counsel in the lower court, and before trial, "that if the plaintiff is entitled to anything at all in this case, the amount of damages shall be $25." This agreement unquestionably fixes the pecuniary amount of damages that plaintiff would have any right to demand, notwithstanding $500 was the amount alleged in his declaration, provided the attorneys had authority to bind their clients by such agreement, and we assume they had, as their authority is not questioned in the brief of counsel. Counsel for defendants insist that this agreement took away from the circuit court jurisdiction to try the case, because it fixes the amount in controversy at less than $50. Section 2, c. 112, Code 1906. But we have no right to decide this question unless this court has appellate jurisdiction to review the case.
If the right of plaintiff to sue out writ of error in this court depends alone on the amount of damages involved in the action, then on principle, and according to the decision of this court in Dickinson v. Mankin, 61 W.Va. 429, 56 S.E. 824, the agreement fixing the amount to be recovered, if any recovery at all, at $25, is conclusive, and precludes the right of appeal, notwithstanding the declaration states the damages to be more than the appealable amount.
Section 3, art. 8, of our Constitution provides that the Supreme Court of Appeals "shall have appellate jurisdiction in civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars; in controversies concerning the title or boundaries of land, the probate of wills, the appointment or qualification of a personal representative, guardian, committee or curator; or concerning a mill, road, way, ferry or landing; or the right of a corporation or county to levy tolls or taxes." Counsel for plaintiff insist that defendants, by failing to plead the general issue, and by pleading specially the right of way claimed by them over plaintiff's land, have converted this action into one "concerning a way," and that this entities plaintiff to have the matter reviewed by this court, notwithstanding the amount of damages claimed is less than $100. We do not think so. We do not think that the filing of the special plea has changed plaintiff's suit from an action of trespass, demanding pecuniary damages, into a controversy concerning a way, within the meaning of the constitutional provision defining the appellate jurisdiction of this court.
What is the real matter in controversy? How is this to be determined? Must we not look to the plaintiff's declaration to see what his complaint is--what his demand? Does this not determine the nature of his suit? What kind of a judgment could the court render in response to his declaration, if the verdict be for him; or what must be the judgment if perchance it should be against him? It would seem that an answer to these questions would go far toward determining the matter in issue, the controversy, because the judgment must respond to the issue. If plaintiff should prevail the judgment would be that he recover against the defendants $25; if the judgment should be against him it would be that he take nothing by his suit. These are the only kinds of judgment that could be rendered in the case, and they, as well as the declaration itself, show that the demand is purely pecuniary. The matter in controversy by which appellate jurisdiction is to be determined is "that which is the essence and substance of the judgment, and by which the party may discharge himself." Umbarger v. Watts, 25 Grat. (Va.) 167. It is true that the right of way was brought in question and was involved in the suit but only indirectly and as matter of defense to the suit. The trespass complained of consisted in the cutting of a wire fence by the defendants which plaintiff had erected across the way claimed by defendants. It therefore followed, as a matter of course, that if defendants could establish their claim to the right of way they would not be guilty of the trespass, as no other trespass was alleged than the cutting of the fence, and the passing over plaintiff's land along the alleged right of way. Defendants therefore filed a special plea by way of confession and avoidance setting up their right of way over plaintiff's land by prescription. If they could succeed in proving their title to the easement, it would be as complete a defense to plaintiff's suit as it would be to prove that they had never committed any trespass under the plea of "not guilty." They had a right to plead specially and were not bound to plead the general issue, and inasmuch as the only trespass complained of was confined to the alleged right of way, a complete defense could be made to plaintiff's action by proving the right set up in the plea. True the plea alleges affirmative matter, but it does so only as a defense to plaintiff's action; it calls for no affirmative relief, neither could any be given a defendant in such an action. The same kind of judgment would have to be rendered in the case, whether the plea were special or general, or both special and general. The claim to the right of way is only defensive, and, therefore, collateral to the real matter in controversy which is whether, or not, plaintiff is entitled to recover damages for an alleged trespass to his land.
It is well established by repeated decisions, both by this court and by the Supreme Court of Appeals of Virginia, that in actions for damages on account of trespass to real estate where the damage claimed is less than $100, this court is without jurisdiction to review the judgment of the circuit court, notwithstanding other matters may have been involved and necessarily decided in order to determine the main issue in the case, which, if they had been made the direct subject of a suit, or action, would have given the right of appeal. It is urged by counsel for plaintiff that the filing of the special plea, and the failure to plead the general issue, gives this case a status different from what it would have had if the general issue had been pleaded. We do not think so. It may be that the special plea was necessary in order to admit proof of the easement, it being by way of confession and avoidance, and not a traverse of the declaration. But it is not necessary for us to decide this point, as we do not think it determines the jurisdictional question. Whether the proof of a right of way could have been given under the general issue, if it alone had been pleaded, or whether a special plea was essential in order to admit such proof, does not change the nature of the controversy...
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