Malamphy v. Potomac Edison Co.

Decision Date12 October 1954
Docket NumberNo. 10655,10655
Citation140 W.Va. 269,83 S.E.2d 755
CourtWest Virginia Supreme Court
PartiesAnna M. MALAMPHY, v. POTOMAC EDISON COMPANY, a Corporation.

Syllabus by the Court.

In an action to recover temporary damages for trespass to land, it is necessary that the quantum of the damages caused by such trespass be shown. If the evidence fails to show the amount of such damages, a verdict in favor of the plaintiff will be set aside and a new trial awarded.

Harry K. Drane, Keyser, Horace P. Whitworth, Western Port, for plaintiff in error.

Vernon E. Rankin, Keyser, for defendant in error.

LOVINS, Judge.

This action was instituted in the Circuit Court of Mineral County, West Virginia, by Anna M. Malamphy, plaintiff, against the Potomac Edison Company, a Corporation, defendant. The plaintiff seeks a recovery of damages for trespass on land allegedly owned by her. Defendant claims the right to use the land by permission of an alleged owner.

The case was submitted to a jury, which, after hearing the testimony and viewing the land, returned a verdict for $2000. The trial court overruled a motion to set aside the verdict and grant defendant a new trial, and entered judgment for the amount thereof. The defendant prosecutes this writ of error to such judgment.

Anna M. Malamphy, the plaintiff and the Potomac Edison Company, a Corporation, defendant, are herein so designated.

A certain tract of land formerly owned by the Cumberland Railway Company is now owned by the Western Maryland Railway Company. A portion of such land containing approximately 1.5 acres was conveyed by the Cumberland Railway Company to Mary L. M. Schiller, by deed bearing date the 2nd day of September, 1915. The land so conveyed was described by metes and bounds in the deed of conveyance and contained the following language:

'There is, however, excepted from the operations of this conveyance, two certain roads, which extend through and over the above described premises, they being known as the old County Road, near the river, and the present County Road lying above it, together with all rights of ingress and egress for all kinds of travel over said roads, to the remainder of the Cumberland Railway Company lands along the river.'

Mary L. M. Schiller conveyed the land to J. M. Malamphy, husband of the plaintiff. There are vague references in the record that J. M. Malamphy was assisted in the purchase of the land by the Western Maryland Railway Company, but just what part the Railway Company took in the purchase of such land is not specifically disclosed by this record.

By deed bearing date the 21st day of December, 1943, J. M. Malamphy and his wife, the plaintiff herein, conveyed the land to a trustee, who, on the same day reconveyed such land to J. M. Malamphy and Anna M. Malamphy, with a right of survivorship. J. M. Malamphy departed this life on or about the 6th day of June, 1948, and his widow, the plaintiff, now claims to own the land by virtue of the survivorship provisions.

The deraignment of title is not specifically shown by title deeds, but there seems to be no dispute concerning the same. The conveyances above stated are covered by stipulation of counsel. No exceptions appear in the deeds of conveyances made by Mary L. M. Schiller to J. M. Malamphy or by Malamphy and the plaintiff to the trustee, nor do any exceptions appear in the deed made by the trustee to Malamphy and wife.

Shortly before J. M. Malamphy died, the defendant commenced using the land ostensibly on the old road right-of-way by virtue of permission of the Western Maryland Railway Company.

There was some controversy between J. M. Malamphy and A. G. Wallace, superintendent of the river plant of the defendant. Three gates which were presumably placed by the Malamphys or at their direction, were removed by the employees of the defendant.

After the death of Malamphy, the defendant continued the use of the land for the purpose of hauling 'fly ash' from its power plant to a dumping ground located on land owned by the Western Maryland Railway Company. The defendant entered upon the land and widened the road by the use of a bulldozer, destroying a part of plaintiff's lawn on which she was cultivating flowers.

The road used by them runs in close proximity to the plaintiff's porch. It is established by oral testimony that holes 10 or 12 inches deep, in which water stood, are located in front of her house, and that such holes were caused by the use of the road by the defendant; that when the trucks of the defendant used the road, water and mud were splashed on the front porch of the plaintiff's house; that soot or 'fly ash' with which the trucks of the defendant were loaded was released and settled on plaintiff's porch, and that by reason thereof, the front porch of the plaintiff is rendered unusable. It was further shown that the soot or 'fly ash' has penetrated the house and has settled on the curtains, rugs and furniture therein located. The plaintiff also avers and establishes by proof that the fruit and vegetables in her garden were spoiled or damaged by the soot, and they are not susceptible of use until washed. The plaintiff testified that the use of the road by the defendant at night interfered with her rest and sleep, and that by reason thereof, she left her house and went elsewhere to live for a short while.

After the evidence was introduced, the trial court granted a view of the premises by the jury.

The plaintiff tendered its Instruction A which was given as amended. The defendant tendered its Instructions 1, 2 and 3. The trial court refused to give defendant's Instructions 1 and 2, but defendant's Instruction 3 was given without objection.

The jury rendered a verdict as above stated, on which the court, after overruling a motion to set aside the verdict, entered judgment for the amount thereof. The defendant assigns as error the action of the court: In refusing to give its Instructions 1 and 2; in overruling the defendant's motion to set aside the verdict, and in entering judgment in favor of the plaintiff and against the defendant.

The controlling question presented on this writ of error relates to the proof of the quantum of damages allegedly suffered by the plaintiff.

Before discussing that question, we advert to other questions which we think are important, though not controlling, and should be clarified upon another trial.

The defendant relies upon the language in the deed from the Cumberland Railway Company to Mary L. M. Schiller. An exception and a reservation in a deed of conveyance are different in legal effect, though the terms are sometimes used interchangeably, or as being synonymous. An exception is language by which '* * * the grantor withdraws from the operation of the conveyance that which is in existence, and included under the terms of the grant.' Tate v. United Fuel Gas Co., W.Va., 71 S.E.2d 65, 70; 1 Devlin on Real Estate, Third Edition, § 221; 16 Am.Jur., Deeds, § 298. 'A reservation is "something arising out of the thing granted, not then in esse, or some new thing created or reserved, issuing or coming out of the thing granted, and not a part of the thing itself, nor of anything issuing out of another thing"'. Tate v. United Fuel Gas Co., supra; 1 Devlin on Real Estate, Third Edition, supra.

Bearing in mind the foregoing principles, the language used in the deed from Mary L. M. Schiller to J. M. Malamphy created an exception and the land or rights, whichever they are, never vested in the plaintiff in this suit, as the grantor withheld title to that part of the land described in the deed. White Flame Coal Co. v. Burgess, 86 W.Va. 16, 20, 102 S.E. 690.

Notwithstanding that the language in a deed of conveyance may be phrased as a 'reservation', such language may be regarded and treated as an exception if it is necessary in order to carry out the plain purposes of the parties to the instrument. Beckley Nat. Exchange Bank v. Lilly, 116 W.Va. 608, 621, 182 S.E. 767, 102 A.L.R. 462; 2 Devlin on Real Eatate, Third Edition, § 980. See Terry v. Tinsley, 140 Va. 240, 124 S.E. 290.

It will be noted that the deed of conveyance from the Cumberland Railway Company refers to the exception as two certain roads called 'the old county road near the river and the present county road lying above it.' It is not stated whether such roads are public or private roads, nor does the record disclose the character of such roads. The proof does not show or tend to show whether the roads were conveyed, dedicated, or whether they were acquired by grant, condemnation or prescriptive use, nor is the width and length of such roads shown. See Harding v. Jennings, 68 W.Va. 354, 70 S.E. 1. Likewise, the record is devoid of any proof showing the traveled way on the ground A road other than a main county road shall occupy a right-of-way not less than thirty feet wide and the necessary slopes. See Chapter 66, Acts of the Legislature, 1917, § 68. Code, 17-1-3; Raleigh County Court v. E. C. Minter Coal Co., 103 W.Va. 386, 137 S.E. 754; State Road Comm. v. Coogle, 108 W.Va. 287, 291 150 S.E. 719; Hark v. Mountain Fork Lumber Co., 127 W.Va. 586, 590, 34 S.E.2d 348. The record is silent whether the land occupied by such road was held in fee or whether only an easement over such land existed.

The showing by the defendant with respect to such exception is defective in that it does not show how the Western Maryland Railway Company acquired the ownership thereof, or transferred the right to use such roads to the defendant herein. Though it is asserted in the oral testimony that permission had been granted by the Western Maryland Railroad Company to the defendant, we do not think such testimony is convincing.

The fact that the deeds from Mary L. M. Schiller to J. M. Malamphy, from J. M. Malamphy and wife to the trustee, and from the trustee to J. M. Malamphy and Anna M. Malamphy contain no language showing the...

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