Norfolk & W. Ry. Co v. Sons

• Decision Date: 21 March 1918
• Citation: 95 S.E. 406
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. A. C. ALLEN & SONS.

95 S.E. 406

NORFOLK & W. RY. CO.

v.A. C. ALLEN & SONS.

Supreme Court of Appeals of Virginia.

March 21, 1918.

Sims, J., dissenting.

Error to Circuit Court, Prince Edward County.

Action by A. C. Allen & Sons against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

F. S. Kirkpatrick, of Lynchburg, for plaintiff in error.

E. Warren Wall, of Farmville, and W. M. Justis, Jr., of Richmond, for defendant in error.

BURKS, J. The facts of this case are as follows: Prior to 1901 the railroad company had been taking water from Lockett's creek with a pump having a 5-inch intake and 4-inch discharge pipe. About 1901 or 1902 it changed the location of its tank and pumping station, and also increased the pipes connected with the pump, so as to have a 6-inch intake and 5-inch discharge pipe. In 1901 the Aliens bought a millsite on the creek below the pumping station, and erected thereon and equipped a mill for grinding wheat and corn, and sawing lumber. It is not claimed that the water taken from the creek at that time or at any time prior to 1907 in any way injured Allen & Sons. The pumping station was lawfully erected for the purpose of supplying the needs of the company, and it continued to take the water as formerly from the creek. In 1907, however, the traffic on the railroad increased to such an extent that it was necessary to take more water from the creek, and from 1907 to 1912 it was claimed that the water taken from the creek so diminished the supply as greatly to injure Allen & Sons, and in the latter year they brought an action at law against the railroad company to recover damages for the previous five years, and also filed a bill for an injunction to enjoin the railroad company from further taking water from the creek. As the railroad company was a public service corporation, and the water was necessary for its purposes, the injunction was denied, but the case was continued on the docket. At the trial of the action at law there was a verdict and judgment in favor of the plaintiffs for $4,000. To this judgment a writ of error was awarded by this court, and, on the hearing, the judgment of the trial court was affirmed. A petition for a rehearing was filed and the ease was reheard and decided January 13, 1916, reamrming the judgment of the trial court. The principal question then involved was whether or not the injury done to the plaintiffs was permanent and continuous, orwas intermittent, and it was held by this court that the injury inflicted on the plaintiffs did not consist in the installation of the pumping machinery, but in taking the water from the stream, and as this might be stopped at any time, and was intermittent at all times, entire damages could not be recovered in one action, but that each successive unlawful taking of the water gave the plaintiffs a new cause of action. Norfolk & Western R. Co. v. Allen, 118 Va. 428, 87 S. E. 558.

The judgment of this court was certified to the circuit court in February, 1916. On August 24, 1916, Allen & Sons instituted a new action against the railroad company to recover, it is said, for the damages sustained since the former recovery, but the declaration is not copied into the record, and we have no means of ascertaining accurately the exact extent of their claim. There was then pending the chancery suit praying an injunction which had been instituted simultaneously with the first action for damages, and this second action for damages.

It was stated by counsel for the railroad company both in his brief and in the oral argument in this court, and not denied by opposing counsel, that at this juncture the railroad company, which had the right to condemn the water, proposed to institute condemnation proceedings for that purpose, but finding that the suit in equity was still on the docket, as also the second action at law, and that complete justice might be done in those cases and a multiplicity of actions avoided, proposed that the whole question should be settled by issues to be ordered in the chancery suit. The suggestion was made therefore to the court that the litigation should take this form. This suggestion was accepted, as appears from the opinion of the circuit court, and thereupon an order was entered in the circuit court on the chancery side, directing "that a jury be impaneled at the bar of this court to report to the court for its consideration in said chancery cause its finding upon the following issues: (1) What sum of money, if any, the plaintiffs should recover as damages for the diversion of the water by the defendant from Lockett's creek, from the 3d day of July, 1912, to the date of the trial of this issue; and (2) what damages, if any, will the plaintiffs sustain in future by the continued diversion of water by the defendant from said stream."

It will be observed that both of these issues were confined to the actual damages sustained, or to be sustained, by the Aliens. Whether or not punitive damages were claimed in the declaration we have no means of knowing, as the declaration is not copied into the record. The subject was not remotely referred to in the order for the issue. In response to these issues, the jury awarded $4,417 for the damage actually sustained, and $5,-933.33 for the damage to be sustained. These issues were tried on the law side of the court and the verdict was certified to the court on its chancery side. A decree was entered against the defendant for the amounts in the chancery suit, and it is from that decree that the present appeal is taken.

A number of exceptions were taken to the action of the trial court during the progress of the trial, but it is not deemed necessary to pass upon them all. We shall notice such only as seem to be material and necessary for the guidance of the trial court on another trial.

It is insisted by the appellees that the appellant has no standing in this court because the motion to set aside the verdict and award a new trial was made before the law judge, and not before the chancellor. The circuit court has both common law and chancery jurisdiction, and the same judge administers both. It is immaterial before which branch of the court the motion is made. This was settled in Meade v. Meade, 111 Va. 451, 69 S. E. 330, which is very similar to the instant case.

Counsel for the appellant insist that we shall consider this case as an appeal in any other chancery case, and treat the evidence adduced on the trial of the issue as though it had been given in the form of depositions. He says, amongst other things:

"Your petitioner does not wish this case sent back for further hearing, but asks it may be treated as a chancery cause, and a final decree entered in this court such as should have been entered in the court below."

It is an all-sufficient answer to this request to say that it was pre-eminently a case for the award of an issue by the trial court, and it would have been error not to have awarded it. The case, in this respect, does not stand on any different footing from other suits in chancery wherein an issue of fact is properly awarded. There was no certain standard for the admeasurement of the damages to be assessed, and there was serious conflict in the testimony as to the amount of the damage inflicted. The sole question submitted to the jury was the amount of damages to be awarded the plaintiffs for the injury sustained and to be sustained, by reason of the acts done and proposed to be done by the defendant. No other question was submitted to them. Their assessment of the damages was approved by the trial court, and where this is the case, and no error is pointed out in the action of the court or the conduct of the case, the finding of the jury will not be disturbed, unless it is palpably and obviously erroneous, or is without evidence to support it. Barbour v. Melendy & Russell, 88 Va. 595, 14 S. E. 326, and cases cited.

Several exceptions were taken to rulings of the trial court excluding the testimony of alleged experts who were offered to show how the injury done by the defendant to the plaintiffs might have been minimized in the past, or might be in the future.

As to past injuries the evidence was properly excluded, as no one is under obligation to undertake to minimize a threatened or an intermittent voluntary trespass. The owner of property is not obliged to so use his own property that another may not injure it. If an injury is merely threatened, no action lies for the threat, and the property owner is under no obligation to attempt in advance to minimize the results of a wrong which may never be inflicted. If the injury is intermittent and recurrent, entire damages cannot be recovered in a single action, as the injury may never be repeated, and for that reason there is no duty resting upon the party injured to attempt to minimize its consequences. But where the injury is permanent in its character and continuous in its consequences, entire damages may be recovered in a single action, and the duty rests upon the injured party to minimize its consequences if it can be done at a moderate expense and by the exercise of ordinary care. Compare Norfolk County Water Co. v. Etheridge, 120 Va. 379, 91 S. E. 133; McHenry v. City of Parkersburg, 66 W. Va. 533, 66 S. E. 750, 29 L. R. A. (N. S.) 860. The owner of a dwelling is under no obligation to remove his furniture therefrom because some one has threatened to burn it, in order thereby to minimize the threatened loss, nor to provide wire screens for windows because through negligence of others a baseball occasionally breaks his glass. In each of these cases the trespasser must pay the entire proximate loss.

The railway company was no less a trespasser because it intended to exercise its right of eminent domain than if it had entertained no such intention. Norfolk & Ocean View Ry. Co. v. Turnpike Co., 1ll Va. 131, 68 S. E. 346, Ann. Cas. 1912A, 239. Every time it diminished the plaintiffs'...