McKenzie v. Ohio River R.R. Co.

• Decision Date: 08 December 1885
• Citation: 27 W. Va. 306
• Parties: McKenzie v. Ohio River Railroad Co.
• Court: West Virginia Supreme Court

27 W.Va. 306

McKenzie

v.Ohio River Railroad Co.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1885.

Decided December 8, 1885.

1.Under the provisions of our statuteCode, ch. 66 a married woman, living with her husband, may maintain an action at law for injuries done to her separate real estate by the construction and operation of a railroad, without uniting her husband in the action, (p. 308.)

2.If in such action the plaintiff desires to recover damages not only for the disturbance to the possession but for permanent injury to the property, the declaration should show by proper averments that its object was to recover damages for such permanent injury, (p. 309.)

8.If, however, the declaration does not contain such averments of permanent injury to the property, it will not for that cause alone be bad on demurrer; and if the plaintiff offers to the jury without objection by the defendant evidence of such permanent injury, the plaintiff may recover therefor on such declaration, and such recovery will be a bar to any future action for such injury, (p. 309.)

4.A deed from a husband to his wife for real estate, while inoperative and void at law, is nevertheless valid in equity and will confer upon the wife a good equitable estate, which in all cases will be enforced against the husband by a court of equity, (p. 310.)

5.Where a wife has the possession and is such equitable owner of real estate, she may, under the provision of our bill of rights, sec. 9, Art. III.Const., recover damages from a railroad company for injuries done to such real estate by the construction and operation of its road, without uniting her husband in the action, (p. 312.)

6.In such action it is not error for the trial-court to permit the plaintiff to read to the jury a deed made to plaintiff by her husband for such real estate, (p. 313.)

Leonard $ Caldwell for plaintiff in error.Loomis $ Tavenner for defendant in error.Snyder, Judge:

Trespass on the case brought October, 1884, in the circuit court of Wood county by Maria McKenzie against the Ohio River Railroad Company, to recover damages for alleged injuries done to the plaintiff's property by the construction and operation of the defendant's railroad.

The defendant demurred to the plaintiff's declaration which demurrer being overruled, the defendant pleaded not guilty, on which issue was joined, a trial had by jury and a verdict found in favor of the plaintif for $250.00.The defendant moved the court to set aside the verdict and grant it a new trial; the court overruled said motion, and on December 22, 1884, entered judgment for the plaintiff on the verdict and the defendant excepted.During the trial the defendant took two bills of exceptions, in one of which all the evidence is certified.To review the action ot the court in overruling the demurrer to the declaration and the alleged errors set out in said bills of exceptions the defendant obtained this writ of error.

The declaration alleges, in effect, that the plaintiff was at the time ot the injury complained of and still is lawfully possessed of two certain houses and lots, Nos. 41 and 44 on Green street in the town of Williamstown in Wood county, on which lot No. 41, is situated the dwelling in which she and the family reside, and also a carpenter shop of the plaintiff from which she derived profits by the manufacture and sale of implements and commodities; that said lots and buildings were of the value of $4,000.00; that said Green street was and is a public road and highway; that on the day, 1883, the defendant, wrongfully intending to injure the plaintiff and deprive her of the uninterrupted use and enjoyment of her property and without her consent, did construct and make a certain railway-track along said Green street near to, in front of and adjoining said lots, dwellinghouse and shop, so as to occupy and appropriate said street in front of the plaintiff's property; that the defendant, during all the period from the laying ot said track to the bringing of this action has placed and kept thereon divers freight and passenger cars and caused the same to be moved and propelled to and fro over and along said track by means of locomotives or steam engines attached thereto, causing great noises and sounds with bells and steam whistles, thereby rendering it dangerous, inconvenient, and unsafe for the plaintiff to travel over and use said street; and also by means of the premises she has been hindered and prevented from having access to and egress from her said lots and houses and from exercising and carrying on her usual business in so beneficial a manner as she did before the committing of said grievances by the defendant, and as she would have continued to do but for said grievances, and she has thereby been deprived of great gains and profits which she otherwise would have derived therefrom and has sustained damages to the amount of $2,000.00.

The planitiff in error contends that the court erred in overruling its demurrer to the declaration.First, because the plaintiff, being a married woman living with her husband, could not bring this action without joining her husband: Second, she cannot, without joining her husband, recover damages done to the property of a permanent nature; and Third, the declaration is not sufficiently specific as to the extent and nature of the injury for which the damages are claimed.It is a sufficient answer to the said first and second grounds, so tar as they arise upon the demurrer, to say, that there is nothing upon the face of the declaration to show, either that the plaintiff was a married woman or that she is claiming damages for any permanent injury to her property.But as these objections may be considered as properly presented in another form by the record in this case, it may be as well to dispose of them here.

In Mathews v. Greer, 21 W. Va. 694, this Court decided that "The statutes of this State ch. 66 of Code authorize a married woman, living with her husband, to maintain an action at law for the recovery of the possession of her separate real property without uniting her husband in the action."

It seems to me, very clear that, if the wife can sue alone to recover possession of her real estate, she may a fortiori sue to recover damages for injuries done to such estate.In Whidden v. Coleman, 47 N. H. 297, it was held to be improper to join the husband with the wife in such an action.

This Court in Smith v. Railroad Co., 23 W. Va. 451, held that, all damages of a permanent character for injuries done to real estate by the construction and operation of a railroad may be recovered in one action at law, and that after such recovery of the entire damages no second action can be brought, except for damages which did not necessarily result from the building and proper use of the road.In the conclusion of the opinion in that case Judge Green says: "Upon the principles laid down in these cases, the plaintiff could recover the entire damages in one action at law which resulted from the making of this railroad through the street; and he should so frame his declaration as to enable him to do so, for he can not maintain repeated actions at law to recover of the railroad company damages necessarily resulting from the running: of its railroad through said street for this it has a right to do."

Ordinarily possession alone is sufficient to entitle the plaintiff to recover in trespass.Storrs v. Fleck, 24 W. Va. 606;Gillison v. Charleston, 16 Id. 282;Snyder v. Meyer, 3 Id. 198.

The declaration, therefore, in this case is sufficient on demurrer, because it expressly avers that the plaintiff was in possession of the premises.But in a case like this, as shown by the evidence, the plaintiff should have alleged both title to, and possession ot, the premises, as also that her property had been permanently damaged and rendered of less value by reason of the construction and operation of the defendant's railroad, and that it would continue in future to be of less value by reason of the existence and operation of said railroad.This would have given the defendant distinct and proper notice of the character and extent of the injury tor which she was claiming damages.If without such averments the defendant had objected to the introduction of evidence tending to prove future and permanent injury to the plaintiff's property, the court would have refused to admit such evidence until the plaintiff had amended her declaration by making the proper averments therein.The defendant, however, did not object to the evidence on that account, and as the plaintiff can not bring a second action for such future and permanent injury, the defendant can not in this Court for the first time complain either that the declaration...