Clay v. City of St. Albans
| Decision Date | 30 April 1897 |
| Citation | 27 S.E. 368,43 W.Va. 539 |
| Parties | CLAY et ux. v. CITY OF ST. ALBANS. |
| Court | West Virginia Supreme Court |
Submitted January 18, 1897
Syllabus by the Court.
1. Pleadings must show title. This rule is met, in declarations in trespass or case for injury to property, real or personal by alleging possession as indicated below, without stating the plaintiff's estate.
2. The word "seisin" imports a freehold estate, either for life or in fee.
3. Actual possession of land will sustain trespass or case against any but the true owner entitled to possession, or one acting under him.
4. A wife, or she and her husband, may maintain trespass for damages to both possession and the inheritance, where there is a conveyance of the land to a trustee to permit her to have possession and use of land, though she is vested with only equitable title.
5. A married woman may sue alone, or she and her husband together at law or in equity, in any action or suit concerning her separate estate.
6. If a city or town, by gutters, drains, or otherwise, collect surface water and cast it in a body on land, it is liable in damages.
7. If a city or town negligently fails to keep its existing drains and gutters open and clear of obstructions, and in condition to carry off the water in them, and by reason thereof land is injured from their overflow, the city or town is liable in damages, provided the overflow is not due to an unusual or extraordinary storm or rainfall.
Error to circuit court, Kanawha county.
Action by M. C. Clay and wife against the city of St. Albans. From a judgment for plaintiffs, defendant brings error. Reversed.
Warth & Briggs and Brown, Jackson & Knight, for plaintiff in error.
S. C Burdett and E. W. Wilson, for defendants in error.
This was an action of trespass on the case by M. C. Clay and Amanda Clay, his wife, against the city of St. Albans, to recover damages for injury caused by the flow of surface water upon a lot occupied by them, resulting in judgment against the city, which sued out this writ of error.
The declaration is attacked on demurrer because it fails to plead the title of the plaintiffs,--not showing whether they claim in fee, or for life or years, in present or future estate. It is plain that a declaration must have legal certainty in all material elements. It must tell wherein and how the plaintiff has been injured. If in property, it must tell what property right has been invaded. This is but the common, basic rule of the law of pleading applicable to declarations and other pleadings, that "the pleadings must show title,"--not title in the common-speech meaning (that is, deeds or other muniments of title), but their results; the right flowing from them; the right estate, or property interest wherein the party has been harmed. Steph. Pl. 286; 4 Minor. Inst. 1182. But how is title to be pleaded? This is a practical question, often of perplexity. Counsel claim that this declaration should say whether the estate is in fee, for life, for years, in remainder or reversion, as the case may be; but I do not think so, for it is well settled that, where there is an injury to a present estate in real or personal property, an allegation of possession by the plaintiff is a sufficient pleading of title; and it will do to allege that personal property was "the goods and chattels of the plaintiff," or that he was "lawfully possessed of certain goods and chattels, that is to say" (specifying them); and in case of realty it will answer to say that the land was "the close of the plaintiff," or that "he was lawfully possessed of a certain close" or "a certain tract of land" (specifying it). Steph. Pl. 286; McDodrill v. Lumber Co., 40 W.Va. 564, 21 S.E. 878. Standard forms show this. Under such statement of title any kind of right or estate in possession, fee simple, for life, or for years, may be shown, but not a future estate; in other words, that mode of statement imports an immediate estate or property. This must be so, because one in possession has some kind of immediate estate in present enjoyment, and possession is an element of title, and prima facie evidence of good title to some kind of estate, and possession alone will support trespass. If the estate injured is a remainder or reversion, though vested, yet not vested in actual possession, you must allege such estate in proper manner. In some cases it is necessary to set out the derivation of title and the estate, as in certain pleas; but generally not in declarations, and not in those for injury to property. Now, test this declaration by these principles. It avers that Amanda Clay was "seised, and, together with the plaintiff M. C. Clay, her husband, has been during all that time, and still is, possessed, of a lot of land." Here is an averment of possession, and, though it does not say of what estate they were seised and possessed, yet it imports some immediate, present estate, not a future one, and is good, under the doctrine above given. Possession alone is sufficient to maintain trespass or case against a wrongdoer. Steph. Pl. 287; Wilson v. Manufacturing Co., 40 W.Va. 413, 21 S.E. 1035.
As to the point that the declaration does not aver that the town collected surface water and cast it on the lot; It does sufficiently do so. It is clear that the town has a right to get rid of surface water, but it must not collect it in bodies, and cast it on property, changing its former flow. This declaration says that "by means of negligence and improper construction of ditches," etc., great bodies of surface water, changed in course, were turned and cast upon" the lot.
Counsel next say that there is a variance between declaration and proof. The declaration goes for permanent damages to the freehold, and alleges a freehold estate in the wife, whereas the evidence shows a deed to a trustee to hold upon trust to permit Mrs. Clay to hold, use, and occupy the lot for her own separate use, free from claims or debts of her husband, and to convey it as she might by will or writing direct, and, on failure to so direct, then to convey to her heirs. The trustee holds the legal title; the wife, the full use and benefit. The deed antedates the Code of 1868, which contained our first separate estate act; but under principles of courts of equity, without the help of that statute, it is her separate estate under such a deed. West v. West, 3 Rand. 373; Lewis v. Adams, 6 Leigh, 320; Code 1868, c. 66, § 1. At first blush it would seem to be a variance, but is it so for the purposes of this suit? This depends on the question whether the plaintiffs can maintain this action; for, if so, there is no available variance. They could surely recover for disturbance of possession, mere possession being sufficient to support trespass. And, even in states where the husband and wife cannot join in an action for injury to her separate estate, they may, on their common possession, recover for injury to that possession, though not for injury to the very property itself,--the corpus or inheritance. Railway Co. v. McLaughlin, 77 Ill. 275; Railroad Co. v. Grabill, 46 Ill. 445; Noyes v. Hemphill, 58 N.H. 537; Lyon v. Railway Co., 42 Wis. 548. But can they recover damages to the body of the estate? It is contended they cannot join in an action for injury to her separate estate. As he has no interest in her separate property, and the action must generally be in the name of the person holding title, one would think it would be misjoinder for both to sue. Many eminent authorities so hold, but many hold that they can unite in suits on contracts with her, or concerning in any wise her separate estate. In this state they may sue together, or she may sue alone. McKenzie v. Railroad Co., 27 W.Va. 306; Fox v. Insurance Co., 31 W.Va. 374, 6 S.E. 929. But there is the legal title in the trustee, not in her. She has only an equitable title, and under general principles, it is a stranger to a court of law, that court knowing only the legal title. Realty conveyed to a wife under our statute gives her legal title, but this case is a deed of trust prior to that act, and the wife has an estate only in equity. Chapter 66 of the Code provides that a trustee holding land in trust for a married woman may convey it to her on order of a court; showing that that legislation, in such a case as this, looks upon the trustee as holding legal title notwithstanding that chapter. 1 Perry, Trusts, § 328, says: ...
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