Heldt v. Elizabeth River Tunnel Dist., 4258

• Decision Date: 22 November 1954
• Docket Number: No. 4258,4258
• Citation: 84 S.E.2d 511,196 Va. 477
• Court: Virginia Supreme Court
• Parties: EMMA HELDT v. ELIZABETH RIVER TUNNEL DISTRICT, A POLITICAL SUBDIVISION OF THE STATE OF VIRGINIA, ACTING BY AND THROUGH THE ELIZABETH RIVER TUNNEL COMMISSION, THE GOVERNING BODY THEREOF; AND E. VIRGINIUS WILLIAMS, TRADING AS E. V. WILLIAMS COMPANY. Record

Page 511

84 S.E.2d 511

196 Va. 477

EMMA HELDT v. ELIZABETH RIVER TUNNEL DISTRICT, A POLITICAL SUBDIVISION OF THE STATE OF VIRGINIA, ACTING BY AND THROUGH THE ELIZABETH RIVER TUNNEL COMMISSION, THE GOVERNING BODY THEREOF; AND E. VIRGINIUS WILLIAMS, TRADING AS E. V. WILLIAMS COMPANY.

Record No. 4258.

Supreme Court of Appeals of Virginia

November 22, 1954.

Sacks & Sacks, for the plaintiff in error.

Williams, Cocke, Worrell & Kelly, Jack E. Greer and Breeden & Hoffman, for the defendants in error.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

Emma Heldt filed a motion for judgment against the Elizabeth River Tunnel District, Tidewater Construction Corporation, and E. Virginius Williams, trading as E. V. Williams Company, to recover damages to her property resulting from the construction of a tunnel for public use under the Elizabeth river, connecting the cities of Norfolk and Portsmouth. The plaintiff alleged that the Elizabeth River Tunnel District had contracted with the Tidewater Construction Corporation and E. Virginius Williams to construct the tunnel, and that during the construction the contractors had negligently and carelessly caused large quantities of water to flow under the buildings on the plaintiff's property, thereby damaging the foundations and walls.

The Tidewater Construction Corporation and Williams filed separate responses, denying the allegations of negligence on its or his part and the resulting damage to the plaintiff's property. The Tunnel District filed its grounds of defense and a demurrer, the latter challenging the sufficiency of the motion on the ground that it failed to charge any negligence on the part of this defendant. The demurrer was sustained, but during the progress of the trial on an amended motion the lower court ruled that allegation and proof of negligence on the part of the defendant were not necessary, and the case proceeded upon that basis. There was a trial before a jury and after the evidence had been concluded the plaintiff elected to take a nonsuit as to the Tidewater Construction Corporation, the trial court struck the evidence as to the defendant, E. Virginius Williams, and there was a verdict in favor of the defendant, Tunnel District. To review the judgment entered upon that verdict the present writ has been awarded the plaintiff.

At the oral argument before us the assignment of error challenging the action of the trial court in striking the evidence as to the defendant, Williams, was abandoned. Consequently, our only concern is whether the verdict and judgment in favor of the defendant, Tunnel District, should be sustained. The parties will be referred to as they appeared in the trial court.

The plaintiff contends that the trial court committed prejudicial errors in its rulings in the granting and refusing of instructions.

In an assignment of cross-error the defendant, Tunnel District, challenges the action of the trial court in ruling that allegation and proof of its negligence were not essential to the plaintiff's case.

By Acts of 1942, ch. 130, p. 168, ¹ the General Assembly created the Elizabeth River Tunnel District, a political subdivision of the State, authorizing it to construct a tunnel for vehicular traffic between the cities of Norfolk and Portsmouth. The District was clothed with the power of eminent domain and permitted to sue and be sued. The Tunnel District entered into contracts with the Tidewater Construction Corporation and E. Virginius Williams for the construction of a portion of the project. The construction work on the tunnel began some time in 1950 and was completed in 1952.

The northern or Norfolk entrance to the tunnel runs in a southerly direction diagonally across Chestnut street, a short distance south of its intersection with Pine street. The plaintiff owns a two-story brick building on the northwestern corner of this intersection, which is about fifty or sixty feet west of the western edge of the tunnel. She conducts a confectionery store on the first floor of this building and uses the second story as a dwelling. She also owns a two-story frame residence located on the north side of Pine street, in the rear of the store building.

The evidence on behalf of the plaintiff is that in 1944 the foundation of the store building was renewed and the building otherwise repaired and put in good condition; that it so remained until the work on the tunnel commenced; and that the Pine street house was likewise in good condition before the commencement of the project. She offered evidence that in the construction of the tunnel a large quantity of water was used from a hydrant located on the sidewalk immediately in front of the store building; that frequently water was allowed to leak from the hydrant onto the sidewalk and street; that large tanks filled with water were permitted to overflow onto the sidewalk and street; that water was pumped out of the excavation onto the street; that the water from these sources was allowed to flow under the plaintiff's buildings, weakening the foundations, causing both buildings to sag, and the walls to crack; and that because of the improper manner in which the street was restored and graded after the completion of the tunnel, rain water collected in front of the properties and likewise flowed under the buildings.

A number of witnesses corroborated the plaintiff's testimony as to the condition of her property both prior to and since the commencement of the construction of the tunnel. Several photographs taken shortly before the trial show the damaged condition of both buildings. Contractors testified that the expenditure of a considerable sum of money would be necessary to repair the damage.

Witness on behalf of the Tunnel District testified that although considerable quantities of water were drawn from the hydrant in question for construction purposes in September, 1950, and January, 1951, no appreciable quantity escaped from the hydrant onto the sidewalk or street, or flowed under the plaintiff's property. They also denied that any water was pumped out of the excavation onto the street or sidewalk so as to run under the plaintiff's property. They further testified that after the completion of the project the street was restored to its proper grade and level.

The Tunnel District introduced the testimony of a contractor who had examined the buildings in November, 1951, and February, 1952. While he agreed as to the present poor condition of the two buildings, he expressed the view that much of the damage complained of had occurred long before the work on the tunnel had commenced; that the buildings were in a low spot, below grade, and rain water had been running under them for many years. Moreover, he pointed out, there were no gutters or downspouts on the building as required by the city ordinance, and that thus the water from the roofs had been permitted for a number of years to run down the sides of the buildings and under the foundations, thus causing or contributing to the damage complained of.

On rebuttal the plaintiff testified that both buildings were equipped with gutters and downspouts as required by the ordinance.

The plaintiff's cause of action is based on the provision in section 58 of the Constitution of Virginia that the General Assembly ...