Jordan v. City of Benwood
| Decision Date | 18 November 1896 |
| Citation | 26 S.E. 266,42 W.Va. 312 |
| Parties | JORDAN v. CITY OF BENWOOD. |
| Court | West Virginia Supreme Court |
Submitted June 8, 1896
Syllabus by the Court.
1. A city is not bound to furnish drains or sewers to relieve a lot of its surface water, whether its own or that flowing from other premises.
2. A city is not liable for damages to a lot owner because change of grade of a street prevents surface water of the lot from flowing off. It is not different even if the surface water is, by reason of such change of grade, increased in quantity upon the lot, if not cast in a mass or body upon the premises. Nor is a city liable for mere surface water flowing from a street upon an adjoining lot.
3. A city cannot by ditches, drains, or other artificial channels collect surface water, and cast it in a body or mass upon a lot. If it does so, it is liable to the lot owner in damages.
4. The provision, in section 9, art. 3, of the constitution, that private property shall not be taken or damaged for public use without just compensation, does not render a city liable for damages to property from surface water where a private individual would not be liable.
5. Where a tort upon realty affect both the estate of a tenant and that of a reversioner or remainder-man, each may sue separately; and, as the damages are apportionable, each recovers damages to cover the injury done to his estate. Neither can recover damages covering the entire injury to both estates.
6. Where work or other action of city authorities is claimed to have been done by its authority, the records of the city council are the proper and best evidence, if existent and accessible.
7. Where work is done by a railroad company in a street of a city, under authority from the city to occupy the street for its track, the city is not liable to adjoining lotowners for injury to their lots from such work, but they must look to the company.
8. A party has the right to have an instruction given in his own language, if pertinent, unambiguous, and correct in law.
9. An instruction, lost, and not appearing in the record, will be presumed to be correct, and no error can be assigned as to it.
Error to circuit court, Marshall county.
Action by Sabina Jordan against the city of Benwood. Judgment for plaintiff, and defendant brings error. Reversed.
Caldwell & Caldwell, for plaintiff in error.
W. H Hearne, for defendant in error.
This was an action by Sabina Jordan against the city of Benwood to recover damages for injury to her lot of land by reason of change of grade of a street and alley on which the lot abuts resulting in judgment against the city, which took this writ of error and supersedeas.
One question is whether there is a material variance between declaration and evidence, in the fact that the declaration states the plaintiff's estate in the lot to be one in reversion, whereas the evidence shows it to be one in remainder. The declaration alleges the plaintiff to be owner of a messuage, in possession of "James McAuliff, as tenant to Bridget Clark, who then was and still is the owner of a life estate for her own life in said messuage and premises, the reversion thereof, after the termination of said life estate of said Bridget Clark, then and still belonging to the plaintiff." Here is a statement of a reversion after the termination of a given life estate whereas the evidence discloses a will giving the lot to Bridget Clark for life, with remainder to Sabina Jordan. The pleader has only misnamed the estate of Sabina Jordan in calling it a "reversion" instead of a "remainder," but he has stated the plaintiff's estate to be an estate in fee after the termination of a given life; and what is there in the mere misnaming, the substance appearing? No surprise results to the other side. "Reversion" and "remainder" mean different things as regard the manner of derivation of title and, in certain instances, the omission to distinguish between them accurately might be material; but they both mean an estate after the termination of a particular estate, and failure to discriminate in this case hurts no one; the defendant being told just what right in the plaintiff ha s been injured. Courts must look at substance.
The claim of the plaintiff for recovery is that a street and alley had been raised in grade, and that, owing to this, surface water of her own lot and some from other lots and streets, cast upon her lot by reason of the change of grade, was kept on her lot, whereas, before, this water had gone into a drain on McMechen street. The case presents the question, is a town or city bound to furnish drains to relieve a lot upon a street of its surface water, whether its own or that flowing upon it from other premises? I answer, "No." It has discretion whether to make drains or sewers or not. Mendel v. City of Wheeling, 28 W.Va. 233, 243; 24 Am. & Eng. Enc. Law. 942; 2 Dill. Mun. Corp. (4th Ed.) §§ 1041, 1046, 949.
Another question is: Suppose the change of grade of a street prevents the surface water from flowing away from land,--dams it up even,--is the municipal corporation liable for damages to the landowner? Answering this question, we meet with a volume of legal authority, and apparently very variant. There are two rules,--one called the "civil law rule," the other the "common-law rule," though it seems it did not originate in England. Most of our states have adopted, as the basis of decision in the main, the common-law rule, but some have adopted the civil-law rule as the more just and logical. The civil-law rule is expressed in the Code Napoleon thus: Under this law, neither of these owners can stop surface water. Very different is the common-law rule. It says each owner may fight surface water as he chooses. He may use it all, divert it away from the lower land, may prevent its invasion of his own land, and thus dam it up on his land, neighbor's land. He may, in the use of his land, cause it to flow differently upon his neighbor's land. He may, in the use of his land, cause it to flow differently upon his neighbor's from what it did before. Gould, Waters, § 263, very clearly states the basic principle thus: 24 Am. & Eng. Enc. Law, 907, 917; extended note, Gray v. McWilliams (Cal.) 21 Lawy. Rep. Ann. 593, 32 P. 976; 2 Dill. Mun. Corp. § 1039; 3 Minor, Ins. 18; Bowlsby v. Speer, 86 Am.Dec. 216; Washb. Easem. 489, 495, 499; Martin v. Jett, 32 Am.Dec. 120, and valuable full note on page 123; Mayor, etc., v. Sikes (Ga.) 20 S.E. 257. The common-law rule recognizes the old maxim respecting ownership of real property, and is based on it, "Cujus essolum, ejus est usque ad c lum." Any other rule would be a restraint upon ownership. Without it a man building houses, walls, or fences, or even in works of agriculture, would be open to constant assault. Of course, it is to be so applied as not to violate reason. The common-law rule has been recognized as applicable in the mother state of Virginia in Railroad Co. v. Carter, 91 Va. 587, 22 S.E. 517. There is no pointed West Virginia case, but Gillison v. City of Charleston, 16 W.Va. 282, and Knight v. Brown, 25 W.Va. 808, recognize the general rule inferentially. By some cases it has been more rigidly applied to the exemption of the lotowner using his lot as he pleases, and municipal corporations, than as to country lands; but the better thought is that the rule is the same in both cases. Therefore the city of Benwood would not be liable for obstructing the flow of surface water from this lot in raising the street grade, if the work was done without negligence, and doing its work with reasonable skill, in the usual way of doing such work, and the damage a mere incident of the work. 2 Dill. Mun. Corp. § 1051, cl. 1.
Another question is, the city liable for surface water which its work for the first time brought upon the plaintiff's lot from other premises than hers? Here we meet with some trouble. There are various and variant decisions, even where the common or civil law rule prevails. The city is engaged in lawful work on its own ground, and it happens that, from it, some surface water is changed in its course and thrown on another's lot, thus increasing the quantity on that lot. This is not actionable, but damnum absque injuria, where the common-law rule holds just the contrary to the civil-law rule, which, as above quoted, says that "the owner of the higher ground can do nothing to aggravate the servitude or easement of the lower ground." If you logically apply the common-law rule, you must say that if, in the use of his land, one stops surface water in its natural course, and turns it in another direction, whereby it goes upon land of another as it never had done before, yet there is no right of action for this, because the letter of the common-law rule is that surface water is, like waters of the sea, an enemy, which each may fight, and which he may consume, repel, or expel, without regard to...
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