Jones v. City Of Clarksburg.
| Decision Date | 20 May 1919 |
| Citation | 84 W.Va. 257 |
| Court | West Virginia Supreme Court |
| Parties | Jesse Jones v. City of Clarksburg. |
If a street, reasonably suitable for use as a highway, be opened and used upon the natural surface as a grade line, and it is recognized and treated by the municipality as a public street, and owners of lots abutting thereon build with reference to such natural grade before the adoption of a paper grade line by the municipality, such natural grade becomes the established grade, and the municipality will be liable to lot owners for damages resulting from the change of grade. (p. 258).
Though an owner of a lot abutting on such a street purchased it after the municipality had established a paper grade line, but before actual physical grading conforming the street to that line, that fact will not preclude his recovery for damages to his lot when(the natural grade is so altered; but he cannot recover for dam ages to buildings or other improvements or accessories erected after the adoption of such paper grade and in disregard thereof. (p. 259)..
However long continued, encroachments on a public road oe street by an abutting lot owner, in this case steps leading to his property, will not confer title by adverse possession or prescriptive right thereto in any part of the thorofare, the right of the publie to remove such encroachments being superior to that of the lot owner to maintain them. (p. 260).
Eegardless of ownership of the fee subject to the easement, of a public road or street, the public authorities may remove or cause the removal of any such obstruction, without liability to theowner of the abutting property, where such removal is necessary for the reasonable accommodation of the public, or in carrying out any system of street improvements, provided it is exercised prudently and reasonably, not willfully or arbitrarily. (p. 260).
The true measure of damages to property abutting on a publio street, occasioned by a change in the grade thereof, is the differ ence between the value of the property immediately before, and its value immediately after, the street improvement, special or peculiar, but not general, benefits to the property being considered and included in the latter value. (p. 262).
Where the grading and paving of a public street have specially benefitted and improved an abutting property, in addition to the.general benefits shared by it in common with other properties similarly situated by reason of such grading and paving, the jury "in determining the value of the property immediately after the " improvement should consider and include therein the value of such special benefits, (p. 262).
The burden of proving special benefits rests upon the party charged with the damage. (p. 262).
Where, as a result of the grading and paving of a public street, an abutting property owner is entitled to recover for an injury 'done to his lot, but not for that done to the buildings or other improvements or accessories thereon, evidence of the damages to be recovered should be clear and specific, and carefully distinguished from those which the jury are not to consider; and, to that end, questions directed to witnesses testifying to the impairment of value should specifically limit the answers to the value of the lot alone exclusive of the buildings or other improvements on it. (p. 266).
As an element in determining the damages sustained, plaintiff may show the cost of those alterations in his property, by way of adjusting it to the new grade of the street, which are necessary to preserve it from further injury and render it fit for use and enjoyment. But such evidence must be considered only in subordination to the rule governing the measure of damages, and as an element in determining the amount to which the owner is entitled. (p. 266).
The cost of a retaining wall, when rendered necessary to protect the property from further injury and fit it for use and enjoyment, may properly be considered, subject to the conditions mentioned above. (p. 268).
In the absence of evidence to show the consent of the city to the erection of a wall on its property, evidence of the necessity and cost of such wall should relate to one erected on plaintiff's owu property, and not on that of the city. (p. 268).
Error to Circuit Court, Harrison County.
Trespass on the case by Jesse Jones against the City of Clarksburg. Judgment for plaintiff, and defendant brings error.
Reversed and remanded for a new trial.
Homer Strosnider and F. 0. Sutton, for plaintiff in error. Charles G. C off man, for defendant in error.
In this action, trespass on the case, brought to August rules, 1915, plaintiff recovered the judgment which defendant seeks to reverse for error committed upon the trial. The cause alleged as the basis of the recovery is an injury to a lot owned by him abutting on First Street in the City of Clarksburg and to two buildings erected on the lot after he purchased it, occasioned by a permanent improvement of the street made by a contractor acting under the direction and supervision of the city authorities in 1912. The chief grounds of complaint specified in the declaration, and to show which plaintiff introduced evidence, are: Alteration of the street: grade; excavation and removal of a portion of the bank or knoll through which runs the line common to plaintiff's lot and defendant's right of way; the destruction of steps used by plaintiff to enter his premises from the street, and defendant's failure to restore them; a like interference with plaintiff's connection with the city water line in the street; and impairment of lateral support.
Plaintiff purchased the lot in 1908, and thereafter improved it by the erection thereon of two buildings without applying to the city authorities to inquire and ascertain where the street grade line, located and adopted by the city authorities in 1899 and represented on the map or plat of the city streets, was, and in which grade line, it appears, no alteration has since been made, and with reference to which the work complained of was done. Though the paper grade line for that street had so been established and adopted, the street surface for years prior to the improvement had existed at its natural grade, though worked and cared for by the city authorities, and not until 1912 was the grade altered to conform to the paper grade established thirteen years earlier. Out of this alteration grew the injury of which plaintiff now complains. It is well settled in this and the majority of states that, if a street, reasonably suitable for use as a highway, be opened and used upon the natural surface as a grade line, and it is recognized and treated by the municipality as a public street, and owners of lots abutting thereon build with reference to such natural grade, before the adoption of a paper grade line by the municipalilty, such natural grade becomes the established grade, and the municipality will be liable to lot owners for damages resulting from, a change of that grade. Blair v. City of Charleston, 43 W. Va. 62; Harman v. Blue- field, 70 W. Va. 129; Rutherford v. Williamson, 70 W. Va. 402; Ray v. Huntington, 81 W. Va. 607; 10 R. C. L. p. 174. A somewhat different rule may apply where a street recently dedicated is so rough and uneven as not to be reasonably suitable for use as a highway and cannot fairly be termed a constructed or improved road. Hickman v. Clarksburg, 81 W. Va. 394. But the facts of this case clearly distinguish it from the case last cited. Here the situation was such from long use and frequent recognition by the municipal authorities in working the street that the natural surface grade can fairly be said to have become the established grade.
Though an owner of a lot abutting on such a street purchased it after the municipality had established a paper grade line, but before actual physical grading conforming the street to that line, that fact will not preclude his recovery for damages to his lot when the natural grade is so altered; but he cannot recover for damages to buildings erected after the adoption of such paper grade and in disregard thereof. Blair v. Charleston, 43 "W. Va. 62. There is "a general concurrence of opinion that an owner who improves his property without regard even to a regularly established (street) paper grade has no cause for complaint for the injury done" to his buildings subsequently erected on his property abutting on the street later improved with respect to such established grade, "this upon the theory that it is not unjust, or unfair, but right, all interests being considered, that the purchaser should take notice of such grade and conform with it in afterwards placing improvements on his lot." Bay v. City of Huntington, 81 W. Va. 607.
This equitable rule forbids allowance of damages such as may have resulted to the buildings erected by plaintiff under the circumstances detailed, as he admits, and the court so instructed the jury trying the case. But whether, in view of the evidence submitted upon the trial of the issue joined, the jury, though properly instructed, may have been misled and included the values of the lots and buildings in their assessment of the amount of recovery to which they deemed plaintiff entitled, is a question answered in another connection. It suffices now to say that, if they did, clearly their finding at least...
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