Compton v. County Court of Marshall County
| Decision Date | 15 April 1919 |
| Docket Number | 3400. |
| Citation | 99 S.E. 85,83 W.Va. 745 |
| Parties | COMPTON v. COUNTY COURT OF MARSHALL COUNTY. |
| Court | West Virginia Supreme Court |
Submitted April 8, 1919.
Syllabus by the Court.
The true measure of damages to property abutting on a public road, occasioned by a change in the grade of the road, is the difference between the value of the property immediately before, and its value immediately after, the road improvement, less any special or peculiar benefits to the property because of the improvement of the road, but not considering such general benefits as accrue to it in common with other property similarly situated.
As elements in determining the damages sustained, plaintiff may show the adaptability of the property for any legitimate purpose as it stood before the alteration in the road, and as it now stands, and also the cost of those alterations in his property, by way of adjusting it to the new grade of the road, which are rendered necessary to preserve it from further injury and render it fit for use and enjoyment. But these facts are to be considered only in subordination to the rule governing the measure of damages.
If a change in the grade of a public road impairs the means of access to property abutting thereon, but the impairment has wrought no change in the true and actual value of the land considered in its entirety, the plaintiff may not recover damages therefor, notwithstanding the inconvenience of access and the expenditure necessary to restore a way of approach to the land and residences thereon.
The allowance of a view by a jury is within the discretion of the trial court, and its refusal is not ground for reversal unless it is clearly manifest that a view was necessary to a just decision, and that the refusal operated to the injury of the party asking it.
Where the testimony relative to the amount of damage caused to an abutting property owner by a change in the grade of a public road is conflicting, the verdict of a jury based on such evidence will be accorded great, often controlling, weight when challenged for error in this court.
Error to Circuit Court, Marshall County.
Action by Mary N. Compton against the County Court of Marshall County. Judgment for defendant, and plaintiff brings error. Affirmed.
Martin Brown, J. Howard Holt, and Stanley B. Wilson, all of Moundsville, for plaintiff in error.
J. C Simpson and J. D. Parriott, both of Moundsville, for defendant in error.
This writ requires a review of the procedure terminating in a nil capiat judgement upon a verdict for the defendant in an action to recover damages for an injury to the proprietary rights of the plaintiff averred to be occasioned by an alteration of a road grade through her land in Marshall county. The road connects with and, though probably much older, is an extension of, Western avenue of the city of Moundsville. The trespass complained of, if any was committed, injured only the land lying on the east side of the road which extends through the entire tract in a direction northward towards Glendale and Wheeling. No complaint is made of any injury on the west side of the road.
Though in some respects lacking perspicuity or positiveness, the averments of the three counts of the declaration combined may be deemed sufficient to show an intention on the part of the pleader to charge defendant with liability on these grounds The unlawful removal of soil, sand, and gravel, or as equivalent thereto the wrongful appropriation of land outside of or beyond the statutory 30 feet of right of way devoted to public use (section 56a2, c. 43, Barnes' Code 1916; section 69, c. 43, Barnes' Code [Code 1913, c. 43, §§ 56a2, 1771]); the destruction of private ways of entrance or approaches from the road, and the necessity for incurring expense in the construction of new ways of approach to the surface of the land and the buildings thereon; the impairment of the lateral support; the effect upon the market value of the land whether devoted to farming purposes, as it has heretofore been, or subdivided into building lots, a purpose to which it is adaptable; the loss of rents, "and other wrongs and injuries" without a more specific statement of what they consist of.
To these different causes of action was addressed the testimony introduced for the jury's determination of the merits of the controversy. The plaintiff undertook but failed to convince the jury that the highway improvement by the alteration of the grade of the road so as to make it more convenient and less burdensome for public use resulted in the taking of land beyond the outside boundary of the road right of way and injury to the residue and otherwise, as averred in the declaration, without paying or securing to be paid to her compensation therefor as required by section 9, art. 3, of the state Constitution. For the most part, if not altogether she confined her efforts to support the demands of the declaration by attempting to establish by proof the expenditure of money necessary to reduce the surface of the land nearest the right of way to the same position relative to the road that it occupied before the improvement, and not whether the market value of the land was less immediately after than it was immediately before the alteration of the grade--the true standard for determining whether a landowner is entitled to compensation for a public or quasi public improvement affecting his private property, except of course as to that part actually appropriated to public use. Harman v. Bluefield, 70 W.Va. 129, 73 S.E. 296. As to such part he is entitled to its true and just value. Although the trial court pointed out the correct rule for determining the compensation to be allowed, plaintiff persisted in pursuing the method described, except by eliciting the opinion of one or two witnesses as to the amount of damages suffered by her, while defendant proved evidently to the satisfaction of the jury and of the trial court by proper interrogatories that the value of the land not appropriated was not less for any purpose for which it was adaptable, but was greater for all such purposes, immediately after than it was immediately before the improvement. And we perceive no sufficient reason to warrant interference with the verdict...
To continue reading
Request your trial