Oresta v. Romano Bros., Inc., 10455

• Decision Date: 16 December 1952
• Docket Number: No. 10455,10455
• Court: West Virginia Supreme Court
• Parties: ORESTA et al. v. ROMANO BROS., Inc. et al.

Page 622

73 S.E.2d 622

137 W.Va. 633

ORESTA et al. v. ROMANO BROS., Inc. et al.

No. 10455.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1952.

Decided Dec. 16, 1952.

Syllabus by the Court

1. A person in possession of land is required so to use it as not to injure the property of another person.

2. A deed will be interpreted and construed as of the date of its execution.

3. A provision in a deed of severance of the coal from the surface of land, made in 1885, which reserves the coal and the right to mine, excavate, ship and remove such coal, but does not waive liability for damages to the surface, does not confer, upon persons, engaged in mining coal by the method known as strip mining who hold under the owner of the coal and the surface of the land on which such mining operation is located and the coal in an adjoining tract of land which is subject to the same mining rights, the right, in so mining the coal on the land of the owner, to cast or deposit, or cause or permit to be cast or deposited, on the surface of the adjoining land, dirt, rock and other materials from such strip mining operation.

4. A person whose property has been injured by the maintenance of a nuisance is not bound to prevent or reduce the damages, especially where the nuisance is in a place over which he has no control.

5. In an action for the recovery of damages to real estate caused by the occasional, intermittent and recurring encroachment upon such real estate of dirt, rock and debris from an embankment on adjoining land, the damages recoverable are temporary, not permanent, in character.

6. In the trial of an action for the recovery of temporary damages to real estate, evidence of the difference between the market value of the property immediately before and immediately after it was injured is inadmissible and, if admitted without objection, a verdict based upon such evidence will, on motion, be set aside.

7. 'A verdict clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover should be set aside by the trial court.' Point 2, Syllabus, Thomason v. Mosrie, 134 W.Va. 634 .

Roscoe H. Pendleton and Jess J. McCoy, Princeton, for plaintiffs in error.

Richardson, Hudgins & Hancock, Bluefield, for defendants in error.

HAYMOND, Judge.

The plaintiffs, Mary Oresta, Mary Oresta Gravely, an infant, who sues by Mary Oresta, her next friend, Mae West, and Franklin Oresta, an infant, who sues by Mary Oresta, his next friend, prosecute this writ of error to an order of the Circuit Court of Mercer County, West Virginia, entered April 7, 1951, which set aside the verdict of the jury in favor of the plaintiffs for $2,400 against the defendants Romano Brothers, Incorporated, a corporation, and Vernon C. Campbell, Eleanor E. Evans and Melvin L. Workman, partners trading as Cliff Coal Company, in an action of trespass on the case instituted by the plaintiffs on January 25, 1950.

To the declaration, which consisted of a single count, the defendants interposed no demurrer but filed their plea of not guilty; and upon the trial of the issues raised by the declaration and the plea, the jury rendered the verdict which the circuit court set aside on motion of the defendants.

The declaration charges, in effect, that the land of the plaintiffs and the dwelling house located on it, were negligently and maliciously damaged by the defendants in causing large quantities of water, earth, rock and other like materials to be cast and deposited, and to accumulate and remain, upon the land of the plaintiffs from and by reason of a large embankment constructed by the defendants in the mining of coal by stripping or removing the earth above the coal on land adjoining and above the land of the plaintiffs, in September, 1949, and during the period of approximately one year preceding the institution of this action; and that, as a result of the negligent and malicious acts of the defendants, the plaintiffs have sustained damages to their land in the amount of $5,000.

At and prior to the time of the commission by the defendants of the acts of which the plaintiffs complain, the plaintiffs were the owners of four contiguous lots of surface land aggregating about seven acres, in or near Matoaka, Mercer County, West Virgnia. A part of this land, containing about one acre and a half fronting on a public highway known as Route 10 for a distance of approximately 450 feet and having a depth of approximately 120 feet, is level and the remaining part of the land is mostly steep hillside which extends up the hill to the land on which, at or near the top of the hill, the strip mining operation conducted by the defendants was located. On the level portion, which is slightly below the elevation of the highway, are a four room one story dwelling, a coal house, and other outhouses. At one time this level section contained a small garden. To one side and in the rear of the dwelling is the mouth of a steep hollow or ravine which extends up the hill beyond the boundary of the land of the plaintiffs and upon the land used by the defendants in connection with their mining operation. A small stream, which is fed by a spring near the upper end of the hollow, runs through the hollow and into ditches on the level land of the plaintiffs which in turn lead to a culvert under the highway in front of the dwelling. In that manner the surface water from the hollow was normally carried or drained from the land of the plaintiffs before it was damaged.

The title to the land of the plaintiffs and the land used by the defendants in their coal mining operation is derived from a common source. The land used by the defendants, including the coal ithin and underlying the surface owned by the plaintiffs, is owned by Pocahontas Land Corporation, and the defendants mined the coal by their stripping operation pursuant to the rights granted to them by the owner of the coal. The deed of severance, made by the owners of both tracts of land in 1885, which conveyed the surface, reserved all the coal and other minerals and contained this reservation: 'With the right and privilege of full and free ingress or egress in, on, beneath and over said lands for the purpose of mining, excavating, shipping and removing said coal and other minerals with all necessary and proper rights of way, roadways and all, and every privilege necessary to the full and perfect enjoyment of the rights and privileges herein reserved.' The plaintiffs own and hold the surfce of the seven acres subject to the foregoing mining rights and, subsequent to the deed of severance, the Pocahontas Land Corporation became the owner of the surface of the tract used by the defendants in mining the coal.

Sometime prior to August, 1948, the defendants, Campbell, Evans and Workman, partners trading as Cliff Coal Company, who had acquired the rights of the Pocahontas Land Corporation to mine and remove the coal in the land adjoining and above the land of the plaintiffs, entered into a contract with the defendant, Romano Brothers, a corporation, by which that corporation was employed to mine and remove the coal by the method of strip mining and in which it agreed, in performing that work, 'not to cast or dump any material excavated so as to permit the same to roll or fall upon the railroad tracks, roads or buildings located below such excavation.' Under the contract the defendant Romano Brothers entered upon the land above the land of the plaintiffs and, by the use of heavy grading machinery and steam shovels, mined and removed approximately ten thousand tons of coal which could have been mined or recovered only by strip mining.

In the process of conducting the mining operation, which ended in September, 1948, or sometime in 1949, the defendant, Romano Brothers, removed the surface above the coal and with it constructed a large embankment, resembling a roadbed and composed of dirt, rock, coal and other like materials, on the steep hillside about seven or eight hundred feet above and distant from the dwelling of the plaintiffs. It also built three wooden barriers or 'dams' across the hollow above the land of the plaintiffs at locations approximately one hundred and tewnty five feet apart for the purpose of impounding dirt, rock and debris from the embankment and preventing these substances from encroaching upon the land of the plaintiffs. Each of these dams is about five feet in height and about thirty feet in length. Two of them were still intact at the time of the trial of this case; and each of them was partly filled with dirt, rock and debris which had slipped, rolled, or been washed down the hollow from the embankment. These dams, however, did not prevent some of the dirt and rocks from descending upon the land of the plaintiffs.

While the defendant, Romano Brothers, was engaged in mining and removing the coal, or after it had been mined and removed, and particularly in August, 1949, and at different times after that date, following any ordinarily heavy rainfall, large quantities of dirt, mud, and rock from the embankment passed down the hollow and were cast or washed and deposited on the level part of the land of the plaintiffs near, under, and in front of, their dwelling. These deposits of dirt range in height from fourteen inches to three and one half feet, cover much of the lawn around the dwelling, obstruct the drainage ditches, and cause the water which normally ran through them to be diverted and to stand and accumulate under the dwelling and at other places on the lawn where it becomes stagnant and emits offensive odors.

Upon the trial of this case, the plaintiffs, seeking recovery of permanent rather than temporary damages, introduced testimony to show the difference between the market value of their property immediately before and immediately after it was injured by the defendants. To limit or reduce the amount of the damages the defendants offered evidence to show that...