Nelson County v. Loving

Decision Date20 November 1919
Citation101 S.E. 406
PartiesNELSON COUNTY. v. LOVING. SAME. v. LEA et al.
CourtVirginia Supreme Court

Error to Circuit Court, Nelson County.

Actions by J. O. Loving and by L. L. Lea and another against Nelson County. Judgments for plaintiffs, and defendant brings error. Affirmed.

In these cases the respective defendants in error (who were plaintiffs in the court below and will be hereinafter so designated) filed before the board of supervisors of the county of Nelson their respective claims against the county for damages for alleged injury done to real estate owned by them respectively, the real estate, as stated intheir accounts, being "damaged, but not taken, by reason of the grading of the new macadam road through the village of Lovingston"; the claim of such damages in each case being the sum of $1,000.

The board of supervisors disallowed these claims, and thereupon the plaintiffs appealed to the circuit court in accordance with the statute in such case made and provided.

In the circuit court there was a demurrer to such claims filed by Nelson county in both cases, in which the grounds of demurrer were stated in writing as follows:

"And for grounds of said demurrer the said defendant comes and says that the county of Nelson is a part of the state of Virginia, and that a state cannot be sued unless as allowed by law, and that suits of the character above are not allowed by law, and therefore the said suit should be dismissed."

The demurrer was overruled by the court below, and thereupon the county entered in each case the plea that it did "not owe the damages in the plaintiff's claim alleged, " and upon that issue there was a trial by jury of the two cases, heard together, resulting in verdicts and judgments in favor of the plaintiffs for the sum of $575 in the first above entitled case and $835 in the second above entitled case.

It was shown in evidence that Lovingston is an unincorporated village, that the work of grading and constructing the macadam road aforesaid was done by Nelson county under the supervision of the state highway commission, acting under and in accordance with the general law of the state on that subject; that the grade of the macadam road aforesaid does not exceed 7 per cent., which is the maximum allowed by law, but it is different from and cut down the old grade of the road an average of 3 feet in front of the property of the plaintiff Loving, which is a hotel in Lovingston located on the side of said road, and 4 to 4 1/2 feet in the highest place in front of the storehouse of the plaintiffs L. L. and W. B. Lea, but not so much at the back thereof, such storehouse being also located in Lovingston on the side of such road; that there was no change of the location of said road in the locality in question except of its grade line; and that no part of the lots of the plaintiffs was taken.

A considerable number of witnesses were examined both for the plaintiffs and for the county. This testimony on both sides of the case is in the main directed to the question of what was the difference, if any, in the market value of the respective properties immediately before and immediately after such change of grade of the road; the difference in such market value being stated by most of the witnesses testifying on the subject as the amount of the damages to such properties estimated by them, respectively. These estimates, as is usual in such cases, varied widely. It is sufficient to say of them that many of the estimates of the witnesses for the plaintiffs much exceeded the amounts allowed by the verdicts of the jury aforesaid. There was some testimony for the plaintiffs to the effect that the respective properties were rendered more inconvenient of access by the lowering of the grade aforesaid of the road along by the buildings thereon, necessitating the erection of retaining walls to hold the banks next to the road and of steps to enter the fronts of the respective buildings, the expense of such construction being stated by the most important witnesses for plaintiffs, and of a railing in front of the Lea store, as making up the larger part of their estimates of the depreciation in market value aforesaid, to which they added something in consideration of the inconvenience and risk of injury to persons going up and down the steps and the probable loss of custom at the store and hotel because of the disinclination of patrons to go in and out and up and down the elevation from the road as newly graded, to and from the respective buildings, as compared with such exit and entrance to and from the road on its old grade, the latter having been on the same level with the front of the hotel of Loving and on a grade of 18 inches above the front of the store of the Leas.

There is one difference between the above-entitled cases which should be mentioned. In the first above entitled case the hotel building has been standing for many years, long antedating the change in grade line of the road aforesaid, having been built with a view to the old grade line of the road aforesaid. In the second above entitled case the store building was constructed very recently, namely, in 1917-18, between the time of the surveying of the road preparatory to its change of grade and the time of the actual work of such change of grade; and the store building, which cost between $9,000 and $10,000, was erected by the Leas with reference to the grade line given them by the person in charge of the work for the county (the person's authority so to do' not being questioned on the trial of the case in the court below so far as the record shows, and not questioned in the assignments of error by the county before us), which was 18 inches only below the old grade of the road; whereas, after the store building was erected, the county changed this grade line to the grade line finally used as aforesaid, which was from 4 to 4 1/2 feet below such old grade in the highest place in front, but not so much at the back of the store building as aforesaid.

The court below gave only two instructions to the jury, the first of which, copied below, was given at the instance of the plaintiffs in both cases, and the next of which, also copied below, was given at the instance of the defendant, the county of Nelson, in both cases. Such instructions were as follows:

No. 1. "The court instructs the jury that, if they believe from the evidence that the defendant changed or caused to be changed the grade of the streets or roadways in front and on the side of the plaintiff's property or either of them, leaving the lot of the plaintiffs and the building thereon (which had been built with reference to grade theretofore existing, or a grade given the plaintiffs by the engineer in charge of said work) up on a bank above the said streets or roads, and so damaged the property of the plaintiffs, they must find for each plaintiff such sum as they may be of opinion from the evidence such plaintiff is entitled to, not exceeding the sum of $1,000 to each of them."

No. 2. "The court instructs the jury that in determining from the evidence whether or not the plaintiffs have been damaged by the change in the grade occasioned by the public improvement made in the streets of the village of Lovingston, Nelson county, Va., adjacent to the property of the plaintiffs, they will take into consideration the benefits, if any, derived therefrom as a whole, and if they believe from the evidence that the market value of the said property was as much immediately after the grade in the said streets had been so changed as it was immediately before, not knowing it was to be so changed, that they should find for the defendant."

The defendant county, however, asked for the following instructions, all of which were refused by the court, namely:

Instruction A. "The court instructs the jury that in consideration whether the plaintiff is entitled to any damages they cannot take separate items of cost and award damages for them, and add them together and say that is the damage suffered, nor can there be a recovery for any specific item of damage as such, but all of them are to be taken together as elements tending to show whether the property has been depreciated in value when considered in connection with the benefits.

"The law has given another rule for measuring damages, as follows: The market value of the property before the damage and unaffected by it and its market value with the grade as affected by it."

Instruction B. "The court instructs the jury that, in suits for damages arising from the change of the grade in the streets of a village, in considering whether or not the owners of adjacent properties, none of which was taken, have been injured thereby, they cannot take into consideration any personal inconvenience to the owners of said properties or any members of their families."

Instruction C. "The court instructs the jury that in such cases as are referred to in instruction B they cannot take into consideration any inconveniences to the customers of the" owners of said properties, or to any other persons, unless they shall believe from the evidence that such inconveniences affected the market value of said properties."

Instruction D. "The court instructs the jury that the law does not, however, authorize a remedy for every diminution in the value of the property that is caused by a public improvement. The damage for which compensation is to be made is a damage to the property itself and does not include a mere infringement of the owner's personal pleasure or enjoyment. Merely rendering private property less desirable for certain purposes or even causing personal annoyance or discomfort in its use will not constitute the damage to property contemplated by law; but the property itself must suffer some diminution in substance, or be rendered intrinsically less valuable, by reason of the public improvement.

"Therefore, if the jury shall believe from the evidence in these cases...

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