Lyons v. Viglianco

• Decision Date: 23 April 1940
• Docket Number: 9005.
• Citation: 8 S.E.2d 801,122 W.Va. 257
• Parties: LYONS v. VIGLIANCO et al.
• Court: West Virginia Supreme Court

8 S.E.2d 801

122 W.Va. 257

LYONS v. VIGLIANCO et al.

No. 9005.

Supreme Court of Appeals of West Virginia.

April 23, 1940

Daugherty & Daugherty, F. W. Riggs, and A. Maurice Foose, all of Huntington, for appellants.

Via Hardwick & Quinlan, of Huntington, for appellee.

HATCHER Judge.

This is a suit to abate a private nuisance and to recover damages occasioned thereby.

The suit was brought in the spring of 1936. The bill alleged that plaintiff, for more than fifteen years, had owned certain real estate upon which was a dwelling house occupied by himself and family; that about ten feet from his dwelling defendants had erected an ice plant which they were operating unlawfully over his protest; and that such operation had broken his

rest, injured his health and that of his family and diminished the value of his property. The bill prayed that the unlawful operation be enjoined and that his damages be ascertained upon an issue out of chancery. (Recitals in the bill show that the alleged unlawful operation consisted in permitting the discharge of noxious gases and in maintaining vibratory machinery. The evidence shows that the plant was constructed in 1932-3.) The defendants did not demur, but answered, denying that the plant was being operated so as to injure plaintiff in any manner. Depositions were taken in May and July of 1936. Whereupon, an order was entered, stating it appeared to the court from the depositions, etc., that the damages claimed by plaintiff were "not readily ascertainable and that an issue out of chancery as prayed was proper." The issue, made up and submitted to a jury on May 31, 1938, was whether defendants were guilty in the manner and form alleged in the bill. Testimony was taken; the premises were viewed by the jury; and a verdict was returned awarding plaintiff $750. Defendants moved to set aside the verdict, but assigned only these general grounds: that the verdict is contrary to the law and to the evidence and unsupported by it; that improper testimony offered by plaintiff was admitted, and proper testimony offered by defendants was rejected. The motion was overruled, judgment was given plaintiff on the verdict, and the court decreed "that the nuisance heretofore complained of by the plaintiff in his bill of complaint filed herein and perpetrated by the defendants, and each of them, be abated."

The court did not find specifically, and apart from the above decretal order, that the plant was being unlawfully operated. However, the validity of the order does not seem to depend on such finding. Barton's Suit in Equity, 140; Hogg's Eq. Procedure, section 1260.

Defendants take the position that the issue out of chancery was directed because the plaintiff prayed for it, and that this was not permissible under Code, 56-64, which authorizes such an issue only upon conflicting evidence, or a showing that it will be conflicting. The court order does recite that plaintiff prayed for the issue, but the reason given by the court for directing it was that the depositions showed plaintiff's damages to be "not readily ascertainable." A fair construction of that phrase, when read in connection with the depositions, is that it meant the evidence of his damages was conflicting.

Defendants take the further position that the plaintiff should have been required to proceed on the one theory of either temporary, or permanent, damages to his property. A motion to that effect was not made. The instructions ordinarily...