Humphries v. Black Betsy Consol. Coal Co.
| Decision Date | 22 December 1934 |
| Docket Number | (No. 7813) |
| Citation | 115 W.Va. 768 |
| Court | West Virginia Supreme Court |
| Parties | Walter M. Humphries v. Black BetsyConsolidated Coal Company |
1. Waters and Water Courses
Where a coal company, in constructing a road under an un- lawful understanding or agreement with a county court, diverts the course of a stream, whereby property is materially damaged by the consequent diversion of flood waters, such company, in an action in trespass on the case for damages due to such diversion, may not rely upon the defense that the relationship of employer-independent contractor existed as between it and said court.
2. Waters and Water Courses
A taking over by the county court of a road constructed by another without authority of law, does not relieve the party constructing the same from subsequent liability for damages to property due to the diversion of flood waters.
Error to Circuit Court, Fayette County.
Action by Walter M. Humphries against the Black Betsy Consolidated Coal Company and another. From an adverse judgment, the named defendant brings error.
Affirmed.
Dillon, Mohan & White, for plaintiff in error. Hubard & Bacon, for defendant in error.
Woods, President:
This is an action of trespass on the case against Black Betsy Consolidated Coal Company, a corporation, and the county court of Fayette county, a corporation, jointly, for damages arising out of the destruction of plaintiff's real estate, improvements and personal property, located on the right-hand fork of Armstrong creek, in Fayette county, by reason of an alleged re-location of the channel of said creek above said property, and the alleged consequent diversion of the flood water of July 12, 1932. The jurj found against the coal company, and for the county court. The coal company prosecutes error.
On the above mentioned date, plaintiff's premises were washed away by a flood. He alleged its destruction to be due to the fact that the normal creek channel, or bed, was changed in 1927 and made to run nearer his property. This was caused by the construction of a road-bed in that immediate neighborhood. The defendant coal company claims to have constructed the road pursuant to an understanding with the county court that the same was to be built as economically as possible and that the county would later take over and maintain the road, and pay the company therefor.
The company urges chiefly that, in making the road, it was an independent contractor and the creek change was incident to the construction of the road; that the change did not leave a condition imminently and inherently dangerous to plaintiff's property, and when the road was taken over and maintained by the county court, the company's responsibility in relation thereto ended.
Plaintiff contends that the company was not an independent contractor, but if so, that the building of the road left a condition which constituted a private nuisance to plaintiff's property, thereby making the general rule, relieving an independent contractor when the employer takes over, inapplicable.
Under our decisions the test determinative of the relation of employer-independent contractor is whether the employer retains or has "the right of supervision." Rogers v. Boyers, 114 W. Va. 107, 170 S. E. 905, and citations therein. (The cited case refers to personal property.) From the evidence, it appears that the only direction given the company before beginning the work was that it be done as economically as possible. Nothing else was said. The location, materials, method, were left entirely to the company.
Plaintiff urges that the relation of employer-independent contractor could not exist because there was no legal, valid contract between the county court and the coal company, the agreement or understanding being merely verbal.
The test is whether the one who acted as the contractor could have enforced his demand for compensation for labor performed at the conclusion of the work against the county court. The court did not meet in its official capacity when it entered into the agreement under which the contractor claims and acted. The contract was not entered upon the court's records, nor is there anything on the records regarding the same except the reference to the payment by the court to the defendant of certain desultory orders, no mention being made of the purpose for which drawn. The records aforesaid show absolutely nothing concerning the making, execution or completion of the contract claimed by the coal company. Under our decisions, such a claim could not be collected by operation of law. Barbor v. County Court, 85 W. Va. 359, 101 S. E. 721. The testimony also shows that the court had no funds at its disposal with which to build the road and that the defendant coal company was willing to do the work with the understanding that it would be reimbursed at a later and indefinite time, when funds were available, or have credit on its taxes from time to time until the money so spent was refunded. Such an understanding is void and of no effect. Code 1931, 11-8-13. The county court cannot make a contract to bind the levies of future years, for over them it has no control. State v. County Court, 98 W. Va. 708, 128 S. E. 925. The agreement or understanding on the part of the court, being in violation of law, conferred no authority on the coal company. Where the act performed is unlawful for the performee, the contractor doing the work is not entitled to avail itself of the plea that it was an independent contractor. Also, the alleged contract with the county court was for the construction of a public road, and did not include the changing of the channel of the creek. The) dredging of a new channel and diverting of the water into it being outside of the alleged contract, was a collateral undertaking. Atlanta R. R. Co. v. Kimberley, 27 Am. St. Rep. 231; 41 R. C. L. 90, sec. 27; Davy v. Levy & Sons, 39 Annals (La.) 551, 4 Am. St. Rep. 225.
Would the coal company, if in fact an independent contractor, be absolved of all liability by reason of the diversion of the water by a taking over of the work by its alleged employer? "The diversion of the water;is a private nuisance." Roberts v. Martin, 72 W. Va. 92, 77 S. E. 535.
It is said in 20 R. C. L. 401, that "a nuisance of a very common occurrence may be produced by the obstruction of, or interference with, water rights, such for example, as an unreasonable diversion of waters." And, further, in 14 R. C. L. 107: "The general rule is stated subject to some recognized limitations which continue the liability of the contractor even after he has parted with his control over the work; as for instance where the finished work is a nuisance, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to a third person." The plaintiff here had a right to have the water of Armstrong Creek flow down to his land and over the same in its natural, mode and course. The coal company owed the duty, therefore, to the plaintiff not to interfere or take away this right and not to create a dangerous condition which continuously threatened to damage or destroy the plaintiff's property. Hence, the defendant company cannot substitute for its own liability that of another. The foregoing proposition is settled law in this state. Cline v. Norfo'k Ry. Co., 69 W. Va. 436, 71 S. E. 705; Need v. Ohio River Ry. Co., 47 W. Va. 316, 34 S. E. 914. The work was performed by the coal company under the supervision of its own engineer. The plaintiff herein, upon ascertaining that the removal of the stream from its usual course was contemplated, remonstrated with the agents of the coal company, telling its engineer that he objected to a change in the stream and if it was done he would institute suit for any damage to which he might later thereby be entitled. According to the law, the defendant coal company is the author of the original wrong and in parting with the premises with the original wrong existing, it is treated as affirming the continuance of it. In other words, it is the wrongful act of changing the channel of said creek which fixes the liability. As this Court said in Pickens v. Coal River Boom, etc., Co., 51 W. Va. 445, 41 S. E. 400, "The original erector of a nuisance or that which creates a...
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