Morgan v. The City Of Logan

• Decision Date: 16 March 1943
• Docket Number: (CC 664)
• Citation: 125 W.Va. 445
• Court: West Virginia Supreme Court
• Parties: Tess Morgan v. The City of Logan

125 W.Va. 445

Tess Morgan

v.The City of Logan

(CC 664)

Supreme Court of Appeals of West Virginia.

Submitted February 2, 1943.

Decided March 16, 1943.

Municipal Corporations

Under Article III, Section 9 of the Constitution of West Virginia a municipal corporation is not exonerated from liability for damages to abutting land consequent from the construction of a street, by delegation of the actual work thereof to the Works Progress Administration, without supervision or control.

Certified from Circuit Court, Logan County.

Action in trespass on the case by Tess Morgan against the City of Logan to recover for damages to the plaintiff's property as a result of negligence in paving a street. The trial court, after sustaining the plaintiff's demurrer to defendant's special plea, certified its ruling to the Supreme Court of Appeals.

Affirmed.

Robert Bland, for plaintiff. R. H. Casto, for defendant.

Lovins, Judge:

In an action of trespass on the case the Circuit Court of Logan County sustained a demurrer to a special plea and on joint application of the parties certified its ruling to this Court.

Plaintiff's amended declaration contains two counts. The first count alleges that plaintiff, Tess Morgan, is the owner of Lots Nos. 46, 47, and 48 of Mountain Lake Addition to the City of Logan, and three houses situate thereon; that the lots front on Walnut Street and extend uphill to Cusack Street; that the surface of the lots is very steep, but the topography thereof was smooth and firm with no breaks or slides therein prior to the grading of Cusack Street by defendant; that defendant graded and attempted to pave Cusack Street on which plaintiff's lots abut, and in so doing it was defendant's duty to use ordinary care; that defendant not only laid the concrete in freezing weather, causing it to heave and break, but also failed to make a firm and substantial grade on which to lay the concrete for proper drainage thereof, which resulted in surface water from the mountain percolating through the broken roadbed and under plaintiff's land causing the land to become so unstable that the concrete roadbed and land on Cusack Street slipped and slid downhill to Walnut Street, damaging plaintiff's houses beyond repair and rendering the real estate of little or no value. The alleged market value of the lots and houses is twenty thousand dollars, with a rental value of one hundred dollars a month.

The second count in the declaration varies from the first count only in that it is alleged that defendant in grading and paving Cusack Street made a large fill of loose earth, failed to tamp, pack and properly drain the same, and to secure said fill by a retaining wall or other means, so that the fill became a loose, movable, mass with little resistance to the force of gravitation, such condition resulting in the landslide which damaged plaintiff's property.

Defendant filed a "special plea," alleging in substance that in 1939 upon petition of owners of property on Cusack Street defendant successfully sponsored a Works Progress Administration project for paving said street; that, after petitioning property owners had agreed to furnish all paving material, the defendant caused its city engineer to locate the street, fix the grades and set stakes therefor, and during the actual construction of the work furnished for a few days one or two of its trucks and drivers therefor; that except as mentioned above defendant had no connection with the project; and that throughout said construction all supervision, authority and control were exercised and the persons doing the work were employed exclusively by the Works Progress Administration.

Plaintiff demurred to the special plea on two grounds: "First, that the City of Logan could not absolve itself from liability for damages, which necessarily or reasonably flow from the grading and construction of Cusack Street * * *"; and "Second, the City of Logan did not relinquish supervision of the work entirely to the Works Progress Administration * * V The trial court sustained the demurrer and certified the following question of law to this Court: "Whether the said special plea of the defendant states facts, which if true, would constitute a defense to the allegations and averments contained in plaintiff's amended declaration?"

The special plea being responsive to the amended declaration we may consider questions arising on the face of both pleadings. Tyler v. Wetzel, 85 W. Va. 378, 101 S. E. 726. The substance of plaintiff's allegations relates to the negligent manner in which the improvement of Cusack Street was made. The sufficiency of the...