Kunst v. City of Grafton
| Decision Date | 08 February 1910 |
| Citation | 67 S.E. 74,67 W.Va. 20 |
| Parties | KUNST v. CITY OF GRAFTON. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Where in constructing a new street a municipal corporation collects the surface water in holes left in the street opposite an abutting lot, and because of the soft and porous condition of the soil the water so collected is caused to flow in and under the same, causing the soil thereof to slip and to destroy the buildings thereon, such municipal corporation is liable in damages to the owner of such lot for the consequential injuries sustained, as for collecting such surface waters in drains or gutters and casting them in a body thereon.
If in so constructing and grading one of its streets on a hillside a municipal corporation build an embankment in front of an abutting lot and thereby increases the lateral pressure thereon, which, combined with the increased flow of the surface water, caused by such street improvement, or by the water collected in holes or in drains or gutters and cast in a body on such lot, causes such lot to slip and to destroy the buildings thereon, such corporation is liable in damages to such lot owner for the consequential injuries to his property.
An instruction to the jury, covering a case not presented by the pleadings, though there be evidence on the subject covered thereby, is erroneous, and unless it clearly appears that the rights of the party complaining have not been injuriously affected thereby, the giving of such an instruction will constitute reversible error.
Though opinion evidence as a general rule is not admissible, still when the facts are such, that it is manifestly impossible to present them to the jury with the same force and clearness as they appeared to the observer, then opinion is admissible as to the conclusions and inferences to be drawn therefrom.
Error to Circuit Court, Taylor County.
Action by Charles F. W. Kunst against the City of Grafton. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.
Chas P. Guard and G. W. Ford, for plaintiff in error.
A. W Burdett and Warder & Robinson, for defendant in error.
A clear statement of the cause of action is rendered necessary to a proper understanding of our decision on the points of error presented. Plaintiff alleges that being the owner of a lot on Front Street in the City of Grafton, running back and up a gentle slope to a steeper hillside and connected with the surface of his lot by a natural and unbroken surface and by natural and unbroken strata, and upon which lot there was situated a two story frame dwelling house, of great value and which, prior to the grievances complained of, was occupied by a tenant, and yielding plaintiff substantial and remunerative rents, the defendant undertook to and did grade and construct a certain new street across said hillside immediately back of said lot, and dug into said hillside to a great depth, the entire width of said lot and in close proximity to the back line thereof, in both directions, and rising quite precipitously to the west for a long distance, and so as to collect in said roadway and its gutters the surface waters from a great territory not theretofore draining to plaintiff's lot; and did thereby unlawfully and wrongfully, and without the consent of plaintiff, throw said surface water, so collected, in a mass or body wholly upon his lot; and did also dump, unload, place and pile cartloads of timber, earth, stone and gravel thereon and extended the embankment or grade of said new street, of great weight, into plaintiff's lot, so as to not only break the surface or strata that theretofore held and sustained plaintiff's lot on said hillside, but so as to cast the great weight of the whole of said embankment upon the rear of said lot, at the place where said new road or street collected said surface water in a mass or body, as aforesaid, and whereby the water so collected and cast in a mass or body thereon, as aforesaid, percolated, soaked and flowed, not only on the surface but under the earth and strata of said lot, from the rear line thereof to said Front Street, and into and under said dwelling house and cellar, and that by reason thereof and of the great weight of said embankment upon and in the rear of said lot, the upper or elevated portion thereof, from rear to near the front, was made to loosen, slip, slide and change its natural lay and location and to carry with it said dwelling house, and to cause said house to fall, and to become wholly untenantable and absolutely worthless, and to be continuously wet, damp, slipping and sliding, and wholly unfit for occupancy, as aforesaid, or for any other purpose, and whereby the plaintiff has been wholly deprived of the use of said lot and dwelling house, and hindered and prevented from enjoying the same to any extent, and that the rental and market value thereof has been greatly diminished, destroyed and ruined, and the plaintiff otherwise greatly damaged.
The theory upon which the case was made up and tried below, was that the damages sustained were in consequence, either, (1) of the alleged wrongful and unlawful collection of the surface waters and casting them in a mass or body upon plaintiff's lot; or (2) of the increased lateral pressure on the soil thereof by the building of the embankment thereon, or in the street opposite thereto, as alleged; or (3) in consequence of the combined force and action of the first two causes of injury.
Upon the trial below there was a verdict and judgment for plaintiff for $362.50, to which judgment, upon the petition of defendant, a writ of error was awarded by this court.
The action of the court below in overruling the demurrer to the declaration, assigned as error in the petition, is not argued or apparently relied on here. We are of opinion that the declaration states a good cause of action.
The action of the court below in overruling defendant's motion to continue the case is apparently relied on as error. The grounds of the motion were, absence of two witnesses.
One of these appeared and was examined. As to the other, the plaintiff proposed that his testimony given on a former trial and taken down by the stenographer might be read in evidence on the second trial. Wherefore we find no abuse of the discretion of the court in refusing to continue the case.
The other errors assigned relate to the giving and refusing of instructions, the alleged admission of improper evidence, and the refusal of the court to set aside the verdict and award the defendant a new trial.
Plaintiff's first instruction, given, was excepted to. It told the jury in substance that if they believed from the evidence that defendant in making, grading and constructing the new street or road in the rear of plaintiff's lot collected the surface water and caused it to percolate, soak and flow in a mass or body thereon, and so as to cause said lot to become marshy and slippery; and did dump, unload, place and pile timber, earth, stone and gravel thereon, and constructed an embankment thereon, so as to cause said lot to slip, slide and change its natural lay and location, all without the consent of plaintiff, and thereby destroying, damaging and ruining the rental and market value of said lot and the house thereon, they must find a verdict for plaintiff and fix his damages at the amount which the same had been deteriorated or lessened in value by the action of defendant. This instruction assumes that the embankment was built upon the plaintiff's lot. The evidence is conflicting as to whether the embankment encroached upon plaintiff's lot; but it is conclusive that either by the action of the water, or the weight of the structure, or both combined, a great portion of this embankment, at or about the time of the injuries complained of, was caused to slip down and encroach upon plaintiff's lot. The theory of the instruction is that the damages were in consequence of the combined action of the water and the increased lateral pressure of the embankment. In this respect this instruction differs from defendant's instruction number 4, refused, and we think properly refused, for while it would have rightly told the jury that plaintiff could not recover for the injuries sustained by the change in the natural flow of the surface waters, by the grading and construction of the street, unless cast in a body upon plaintiff's lot, it would have also told them that he could not recover for injuries thereto by the making or extension of said embankment upon or opposite to said lot, or by any or all of such causes combined. It is proper, therefore, to consider these instructions together, involving as they do the question whether plaintiff can recover for damages to his lot from the increased lateral pressure of said embankment.
The only objection urged to plaintiff's first instruction is that there is no evidence showing that the surface waters were collected and caused to flow in a mass or body upon his lot. The evidence relied upon is mainly that of the witness Jackson, who testified that in digging and excavating big holes were left in the road, and the water coming down off the hill settled in these holes and flowed down through the openings in the stone, and that in this way they were collected in a body and cast upon or under the surface of plaintiff's lot. The testimony of other witnesses also tends to support this witness as to this fact. It is earnestly insisted, however, that this evidence does not bring the case within the rule of Jordan v. Benwood, 42 W.Va. 312, 26 S.E. 266, 36 L.R.A. 519, 57 Am.St.Rep. 859, and Clay v. St. Albans, 43 W.Va. 539, 27 S.E. 368, 64 Am.St.Rep. 883. The evidence does not show that the water thus...
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