Flanagan v. Gregory & Poole

• Decision Date: 11 December 1951
• Docket Number: No. CC,CC
• Citation: 136 W.Va. 554,67 S.E.2d 865
• Court: West Virginia Supreme Court
• Parties: FLANAGAN et al. v. GREGORY & POOLE, Inc. et al. 783.

Page 865

67 S.E.2d 865

136 W.Va. 554

FLANAGAN et al. v. GREGORY & POOLE, Inc. et al.

No. CC 783.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1951.

Decided Dec. 11, 1951.

Syllabus by the Court.

1. 'So long as the identity of the cause of action originally averred is preserved, an amended declaration is not demurrable merely because it introduces additional phases or circumstances of the same wrong complained of in the first pleading.' Syl. 1, Mulvay v. Hanes, 76 W.Va. 721 .

2. Where the lessor and lessee of land, acting in pursuance of a common purpose, the lessor permitting the lessee to erect structures which cause damage to the land of another, there is no misjoinder of parties or actions in making such lessor and lessee parties defendant in a single action brought by the injured party for such damages.

3. If an injury to real estate is such as to affect its value permanently, permanent damages can be recovered for that injury; or, if the character of the agency, from the operation of which the injury arises, is such that it can reasonably be expected to continue for an indefinite time, and its operation in the ordinary and proper way produces the injury complained of, the plaintiff not only can, but he must, if he would recover damages at all, sue and recover permanent damages.

4. If damage to land is not continuous, but intermittent, occasional, or recurrent from time to time, or there is a structure of a temporary character which causes such damage, the injury is of a temporary character, and damages therefor must be recovered in successive actions.

5. The lessee of land, who erects structures upon the leased premises, creating a nuisance on contiguous land, cannot escape responsibility for damages to an adjoining landowner by reason of the expiration of such lease and abandonment of the premises.

Maxwell & Young and Haymond Maxwell, Sr., Clarksburg, for plaintiffs.

Clifford, Jones and White, Johnson & Johnson, William G. Johnson and Charles B. Johnson, Clarksburg, for defendants.

LOVINS, Judge.

This action was instituted in the Circuit Court of Harrison County by Millard Flanagan and Helen Flanagan, hereinafter designated as plaintiffs, against Gregory & Poole, Inc., a corporation, John J. Williams and Stata Williams Wells, hereinafter referred to as corporate defendant and individual defendants, respectively. After making the several rulings, hereinafter mentioned, the trial court on its own motion certified certain questions to this Court.

Plaintiffs filed an original declaration in which it is alleged that the corporate and individual defendants erected and maintained a certain embankment for a roadway across the valley of the north branch of Sycamore Creek in Harrison County, and also that the said defendants erected an inadequate culvert under such roadway.

It is averred that the flow of water in the creek is impeded and that by reason thereof plaintiffs' land and buildings situate upstream from the lands of the individual defendants were flooded. It is alleged that the land, by reason of such flooding, was rendered unfit for agricultural purposes and the buildings belonging to the plaintiffs became unsuitable for occupancy as a residence.

Plaintiffs aver in the original declaration that the roadway and inadequate culvert constitute a nuisance. The amended declaration in which the same facts are alleged avers that the roadway and culvert constitute a nuisance and that the defendants wrongfully, injuriously, and negligently caused the damage to plaintiffs' land and buildings.

The original and amended declarations, and the special pleas filed by defendants, disclose that plaintiffs own a forty-seven acre tract of land contiguous to but situated upstream from certain lands owned by at least one of the individual defendants; that on April 7, 1947, the individual defendants leased their lands to the corporate defendant for the purpose of strip mining the Pittsburgh seam of coal; that in the course of strip mining the coal it was necessary to build an elevated roadway across the valley through which the north branch of Sycamore Creek flows; that the said roadway is elevated above the natural level of the valley; that the corporate defendant constructed a culvert under the raised roadway, which culvert, plaintiffs allege, is wholly inadequate to carry off the water in the creek; that because of the roadway and inadequate culvert the lands of plaintiffs were flooded and rendered unusable for agricultural purposes and certain buildings situated on the land were rendered unfit and unusable for residential purposes.

Prior to the 25th day of June, 1950, the date of the alleged injury to plaintiffs' land, the corporate defendant had ceased to mine coal on the land of the individual defendants, and had ceased to use the roadway. The corporate defendant has had no interest in the land of the individual defendants, or ownership and possession of the roadway, since the month of October, 1948.

Defendants objected in writing to the filing of plaintiffs' amended declaration on the ground that a new and different cause of action from that alleged in the original declaration is therein alleged, and, therefore, there is a departure in pleading from the cause of action originally declared upon. The objections to filing the amended declaration having been overruled, the individual defendants demurred to the same.

The defendant Stata Williams Wells tendered a special plea along with her demurrer to the original declaration in which she alleged that, though she signed the agreement of lease between the individual defendant John J. Williams and the corporate defendant, at the time of signing the agreement she had no interest in the land on which the roadway and culvert were constructed; that she had had no interest in such land since the construction of the same; and that she had never maintained either the roadway or the culvert with the defendant John J. Williams, or the corporate defendant, or either of them. The plaintiff's demurred to her plea.

Defendant John J. Williams filed a special plea of estoppel to the amended declaration, which, in substance, alleges that he did not authorize the corporate defendant to construct or maintain the roadway and culvert in a negligent manner so as to injure the close and land of the plaintiffs; that he did not consent to or have knowledge of the construction and maintenance of such roadway and culvert in a negligent, wrongful, or unlawful manner; that before the expiration of the coal lease held by the corporate defendant, to wit, the 21st day of February, 1949, the plaintiffs brought an action at law in the Circuit Court of Harrison County solely against the corporate defendant; that in the action so instituted a verdict was rendered for the plaintiffs for the damages to their land by reason of the construction and maintenance of the roadway and culvert; that a judgment in favor of the plaintiffs for the amount of the verdict was rendered; that a writ of error to such judgment was granted by this Court and is now pending; that he, John J. Williams, was a witness for the corporate defendant in the action at law; that he then obtained full knowledge and information with regard to such action and was led to believe, and did believe, that the plaintiffs in such action had made an election to claim and recover permanent damages accruing by reason of the construction and maintenance of the roadway and culvert, and that he was misled in respect to such election of remedies by the plaintiffs; that by reason of such knowledge and belief he did not cause the corporate defendant to remove the roadway and culvert from the lands; that he otherwise would have required such removal; that the roadway and culvert are in the same condition as when constructed and maintained by the corporate defendant under the terms of the lease agreement; that the defendant has done nothing to change or alter the roadway and culvert; that he had done nothing by way of maintenance on the roadway; that he, however, had constructed a farm fence to prevent access to the roadway; that he has not used or maintained such roadway; and that the plaintiffs are therefore estopped from asserting a claim in the instant action against him. Plaintiffs interposed a demurrer to such plea.

The individual defendants filed a joint plea of estoppel substantially alleging that the least by them to the corporate defendant, bearing date April 7, 1947, leased to it all the Pittsburgh vein or seam of coal suitable for strip mining underlying four certain tracts of land on Sycamore Creek, one of which tracts adjoins the land of the plaintiffs; that the duration of such lease was for two years commencing April 7, 1947; that the lease provided that the corporate defendant should comply with all the laws of the State of West Virginia, and did not authorize the corporate defendant to do any unlawful or negligent act on said tracts of land; that the roadway and culvert were constructed solely by the corporate defendant and maintained by such defendant until the expiration of the coal lease on or about April 6, 1949; that the roadway and culvert were constructed and maintained by the corporate defendant within sight of plaintiffs' dwelling on their lands, and with the full knowledge of the plaintiffs, but is located more than three miles from the individual defendants' residence; that they had no knowledge that the roadway and culvert interfered with the flow of water in the north branch of Sycamore Creek until after the first day of February, 1949, when an action was instituted by the plaintiffs against the corporate defendant as sole defendant in which it was alleged that their lands and buildings had been permanently damaged. The special plea then goes on to allege in detail the issuance and service of process in the first action wherein the corporation was the sole defendant, and that the...