Guinn v. Ohio River R. Co.

• Citation: 33 S.E. 87,46 W.Va. 151
• Parties: GUINN et al. v. OHIO RIVER R. CO.
• Decision Date: 01 April 1899
• Court: West Virginia Supreme Court

33 S.E. 87

46 W.Va. 151

GUINN et al. v. OHIO RIVER R. CO.

Supreme Court of Appeals of West Virginia.

April 1, 1899

Submitted February 12, 1898

Syllabus by the Court.

1. Though a railroad company has authority from a city to build its road in a street, yet it is liable to an adjoining lot owner for damage flowing from its construction and operation.

2. If a private nuisance is of such character that its continuance is necessarily an injury, and is of a permanent character, that will continue without change from any cause without human labor, and dependent for change on no contingency of which the law can take notice, then the damage is original and permanent, and right of action at once exists for recovery of entire damages, past and future; and one recovery is a grant or license to continue the nuisance, and there can be no second recovery for its continuance. It is otherwise where the damage is not continuous, but intermittent, occasional, or recurrent from time to time.

3. Where a railroad company builds its road in a street, and thereby injures access to, and damages, a lot abutting on the street, such damage is original and permanent; and the company building the road is liable, but a company subsequently leasing and operating the road is not liable therefor.

4. In ascertaining damage to a lot from permanent injury from the construction of a railroad in the street under municipal license, the measure of damage is the difference in the value of the lot immediately before and immediately after its construction.

5. In fixing damage to a mill from construction of a railroad in the street in front of it, increased wholesale trade consequent upon increased facility of shipment from it by reason of the road may be set off against loss of local retail trade, in fixing the value of the property.

6. If a verdict assessing damages violates the standard or measure of damages given by law, it is against law, and should be set aside.

Error to circuit court, Cabell county; Thomas H. Harvey, Judge.

Action by Guinn Bros. against the Ohio River Railroad Company. There was a judgment for plaintiffs, and defendant brings error. Reversed.

Vinson & Thompson, for plaintiff in error.

Campbell Holt & Campbell and George I. Neal, for defendants in error.

BRANNON J.

This action of trespass on the case was brought by Guinn Bros against the Ohio River Railroad Company to recover damages for injury to a lot of land, and a mill standing upon it consequent upon the construction and operation of the Big Sandy Railroad along Second avenue, in the city of Huntington, in front of said property. The jury found for the plaintiffs $4,500, for which judgment was rendered, and the defendant appeals.

It is well settled in this state that, though a railroad company has legal authority to build a railroad in a street, yet, if the same work injury to an abutting property owner, he may recover of the company damages therefor. Stewart v Railroad Co., 38 W.Va. 438, 18 S.E. 604. The case at once presents a troublesome question. Is the Ohio River Railroad Company liable at all? The railroad was not built by it, but by another corporation, the Lexington & Big Sandy Railroad Company; but, by lease or otherwise, it went into the hands of the Ohio River Railroad Company, which was operating it when this suit was brought against it alone. I need not discuss liability for wrongs of lessor and lessee railroad companies under the different forms of the question often arising. Our question is, is the Ohio River Company liable? If we say that the construction and operation of the road in front of the plaintiff's property is a private nuisance, it might seem, at first thought, that the Ohio River Company would be liable, on the legal principle that where a lessor constructs something that is a nuisance and the source of injury, and leases his land, and the tenant actively continues the nuisance, both are liable, and, I suppose, either. In such case the lessor originates, and the tenant continues, the wrong. Tayl. Landl. & Ten. § 175; Wood, Landl. & Ten. § 539; 2 Hil. Torts, 587; 1 Jag. Torts, 223; Irvine v. Wood, 10 Am. Rep. 603; Joyce v. Martin, 15 R.I. 558, 10 A. 620. See, as to liability of lessors and lessees of railroads, note in Lee v. Railroad Co., 58 Am. St. Rep. 147 (s. c. 47 P. 932). But, on further thought, this does not meet the peculiarity or true nature of this case. The instant the Huntington & Big Sandy Company finished, and began the operation of, this road, the injury to the plaintiffs' property was complete, and that injury was not a temporary nuisance, abatable and removable, because the railroad was authorized by the municipal authority to be in the street, and was not a public nuisance, and was thus a permanent structure, affecting permanently the substantial value of the property, if in fact it injured it; and right of action at once arose to allow Guinn Bros. to sue the Huntington & Big Sandy Company, and recover once for all entire damages for all future time, and they could not maintain action after action, from time to time, to recover damages occurring from time to time from the continued use of the railroad. Watts v. Railroad Co., 39 W.Va. 196, 19 S.E. 521; Henry v. Railroad Co., 40 W.Va. 234, 242, 21 S.E. 863; Smith v. Railroad Co., 23 W.Va. 451. Now, when this cause of action was complete, it was alone against the Lexington & Big Sandy Railroad Company, and the Ohio River Railroad Company was not then liable to it. Its subsequent lease and operation of the road would not make it liable to that action. True, it continued the operation of the cause of the injury; but it did not assume that action, and the injury giving cause of action was already done. A tenant is not liable for a tort done and completed by the landlord before the lease. A lessee railroad company is not liable for a completed tort of its lessor railroad company. 3 Wood, R. R. 2054; Railway Co. v. Kain, 35 Ind. 291. Plainly, if Guinn Bros. had sued the Huntington & Big Sandy Company, there would have been a license to use the railroad ever after, and, if the Ohio River Company had then leased it, it would not be liable for continued operation; and, as all it is guilty of is continued operation, I do not see that the fact that suit was not brought against the Huntington & Big Sandy Company would make the Ohio River Company liable, considering that suit could have been brought, as the right of action was perfect. The construction of the road is the wrong of which the plaintiffs complain, and the right of action and limitation upon it began from construction. It is different where the injury and action do not flow from construction, but from some after consequence of it, working injury intermittently and occasionally, recurring at times from negligent construction, as in Henry v. Railroad Co., supra, or Dickson v. Railroad Co., 71 Mo. 575, 2 Am. & Eng. R. Cas. 538, for diverting a stream by an...