Hargreaves et al. v. Kimberly. .

• Decision Date: 14 November 1885
• Citation: 26 W.Va. 787
• Parties: Hargreaves et al. v. Kimberly. .
• Court: West Virginia Supreme Court

26 W.Va. 787

Hargreaves et al.

v.Kimberly.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1885.

Decided November 14, 1885.

1. A declaration in case for diversion of surface water held sufficient.

Gillison v. Charleston, 16 W. Va. 282, and Knight v. Brown, 25 W. Va. 803, adhered to. (p. 700.)

2. Where evidence is introduced, which appears proper at the time,

and the court admits it and refuses to exclude it on motion of counsel with the remark:" It will be excluded, if it hereafter appears that it is irrelevant," and the record shows, that it afterwards appeared that it was irrelevant, but no motion was afterwards made by counsel to exclude it, the objection to its admission is waived, (p. 790.)

3. A party has a right to deal with a run on his land, as he sees fit,

provided he does not cause the run in its usual condition to encroach upon the property of another. (p. 791. i

4. In repairing, maintaining or replacing the banks of a run on his

own land a person has no right to change or narrow the natural course of the run, so as to cause it to encroach upon the property of another and injure him. (p. 791.)

5. Where the record does not show, whether certain instructions made

part of the record were given or refused, the appellate court can not consider them. (p. 794.)

6. In an action for damages for diverting water from a run it was not error to refuse the following instruction asked for the defendant: "The defendant is not liable to plaintiffs for any washing, slipping or other injury to their property resulting from an extraordinary and unusual condition of the run." (6.794.)

7. In an action for damages for diverting water it is proper to ask a

witness to state from facts within his own knowledge what in his opinion was the amount of damages suffered by the plaintiff because of such diversion of the water; and to authorize the giving of such opinion it is not necessary that the party be an expert, (p. 796.)

8. But it is error to permit a witness to answer in a case like this the

following question: "What will be the future damage to the property from the acts of the defendant?" (p. 797.)

9. Where the cause of the injury is in its nature permanent, and a re-

covery for such injury would confer a license on the defendant to continue the cause, the entire damage may be recovered in a single action; but where the cause of the injury is in the nature of a nuisance and not permanent in its character but of such a character that it may be supposed, that the defendant would remove it rather than suffer at once the entire damage, which it might inflict if permanent, then the entire damage can not be recovered in a single action; but actions may be maintained from time to time, as long as the cause of the injury continues, (p. 799.)

10. One trespass can not be set off' in bar of another; but where the damage alleged by the plaintiffis caused in part by the wrongful act of the plaintiff, the defendant may by way of defence under the plea of not guilty prove such wrongful act of the plaintiff in mitigation of damages, (p. 800.)

W. P. Hubbard for plaintiff in error.

H. M. Russell for defendant in error.

Johnson, President:

This was an action on the case brought in the circut court of Ohio county in September, 1883, to recover damages for causing surface-water to flow on the lot of plaintiffs, and also for damages to plaintiffs' trees from the use of coke-ovens near the said property and for injuring the health and destroying the comfort of the plaintiffs by said coke-ovens. The defendant demurred to the declaration and to each count thereof. The demurrer was overruled, and the defendant pleaded not guilty. On the 28th day of January, 1884, a verdict was rendered against defendant for $325.00, which verdict he moved to set aside. The court on the 10th day of July, 1884, overruled said motion, and on the 3d day of September, 1884, entered judgment on the verdict. The defendant saved certain alleged errors in the rulings of the court by a bill of exceptions, which certifies all the evidence given in the case and shows, that the defendant excepted to the admission and rejection of evidence, also to the giving and refusing of instructions, and to the refusal to set aside the verdict and grant him a new trial.

To the judgment the defendant obtained a writ of error.

The first error assigned is the overruling of the demurrer to the declaration. The plaintiff in error insists that he had the right to change the surface of his own land in the careful conduct of his own business, and it is insisted that there is no allegation in the second count of the declaration that the act of the defendant was "wrongfully, injuriously or negligently done." The second count contains these words:" Yet the said defendant, well knowing the premises, but contriving wrongfully and maliciously to injure the plaintiffs, afterwards, to-wit, on the first day of January, 1882, and on divers other days before and after that day made, prepared and dug such ditches, drains, troughs, dams and gutters upon the land so occupied by him as aforesaid, and so dug, tilled and altered the surface of the last named land that in times of rain-fall large quantities of the water which fell on the last named land were collected and diverted and caused to ffow in and upon the said lot ot the plaintiffs," &c. We think there is nothing in this objection and that the declaration and each count thereof is good. (Gillisonv. Charleston, 16 W. Ya. 282; Knight v. Brown, 25 W. Ya. 808.)

It is assigned as error, that the court did not exclude from the jury the following statement of Mrs. Hargreaves: "All my ground washed away, and the fence fell down on the street and the front wall along with it, and I had to get all that wall rebuilt, and get all the ground filled up." The defendant by counsel moved to exclude what the witness said about the front wall. The court said, he would overrule the motion for the present; but if the testimony had no bearing upon anything mentioned in the declaration, it would thereafter be excluded, to which ruling the defendant by counsel excepted. The record does not show, that the counsel for defendant afterwards asked to have the evidence excluded. The first count of the declaration alleges, that by the acts of the defendant, "a certain wall, which the plaintiffs had built upon their said lot for the purpose of supporting one of the said dwellings, was undermined and caused to fall," &c. This was the first witness; and it did not appear, whether she was speaking of the same wall described in the declaration or not. What she said about it was drawn out on cross-examination; and before the counsel for defendant moved to exclude the evidence, it would have been an easy matter to have ascertained from the witness, whether the "front wall," which she had spoken of, was the same as that mentioned in the first count of the declaration. The counsel for plaintiff in error here insists, that it was afterwards made to appear, that the "front wall" spoken of by Mrs. Hargreaves was not the "wall" mentioned in the first count of the declaration, and that it was error for the court "not to redeem its promise" and exclude the evidence. The "promise" was a conditional one, "that if it shall appear that the wall" mentioned in the first count of the declaration is not the "front wall," of which the witness spoke, if asked to do so by counsel, the "court will exclude the testimony." Counsel did not afterward ask the court to exclude the evidence, and so waived the objection, and the court did not err in refusing to exclude the evidence, when the objection was made to it. It would be unjust to the judge of the trial-court to hold, because he did not of his own motion exclude evidence shown to be irrelevant, which he had previously admitted, when it seemed at the time to be proper, that the judgment should be reversed and the verdict set aside.

It is also assigned as error, that the court refused to permit defendant to show, that the destruction of one panel of fence was with the consent of one of the plaintiffs. The court ruled, that the testimony of the witness in regard to the destruction of the fence is not a matter of controversy, and such evidence could not be considered by the jury. It this were an error, it was not to the injury of the defendant, and therefore he can not complain of it.

The instructions given and refused, are set out below as follows:

"The foregoing being all the evidence introduced to the jury, the plaintiff asked the court to give the jury each of the following instructions:

"instructions.

"While the defendant, the run being on his land, had the right to deal with it as he saw fit, so that he did not cause the run, in its usual condition, to encroach upon the plaintiffs' property, yet he had no righ:, by any constructions or obstructions, to divert the run from its natural course so as to cause it, in its usual condition, to encroach upon the property of the plaintiffs, or to wash away their ground, and by the usual condition of the run is meant as well its condition at times of ordinary and usual floods and freshets as its condition in dry weather.

"In repairing, maintaining or replacing the bank of the run next his coke-ovens, the plaintiff has no right to change or narrow the natural course of the run so as to cause it to encroach upon the property of the plaintiffs, or to wash away their ground; and if the jury believe from the evidence that in maintaining, repairing or replacing said bank, he has so narrowed or changed the; natural course of the said run, he is liable for any damages thereby occasioned.

"To the giving of each of the said instructions, the defendant, by his counsel, objected, but the court overruled said several objections, and gave each of the said instructions; to which several rulings of the court, the defendant by his counsel, then and there excepted."

The court, upon the motion of the defendant, gave...