Pamplin v. Norfolk & W. Ry. Co

• Decision Date: 16 January 1919
• Citation: 98 S.E. 51
• Court: Virginia Supreme Court
• Parties: PAMPLIN . v. NORFOLK & W. RY. CO.

98 S.E. 51

PAMPLIN .

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

Error to Circuit Court, Appomattox County.

Action by Dora E. Pamplin against the Norfolk & Western Railway Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial, with directions.

This is an action at law by the plaintiff in error (hereinafter called plaintiff) against the defendant in error (hereinafter called the railroad company) to recover damages alleged in the declaration to consist of the diminution of the market value and the impairment of the right of use and enjoyment of the occupation of certain land and the dwelling house thereon, due to the construction and operation of the railroad of the defendant railroad company and a change of grade in a county road by the railroad company, near the plaintiff's said property.

The land in question consists of the residue of a tract of 8 or 9 and a fraction acres (which we will designate the "Pamplin home tract"), belonging to the plaintiff, after deducting therefrom a parcel of 1 1/4 acres which she conveyed to the defendant by deed dated June 2, 1915, which was acknowledged and delivered to the defendant on June 4, 1915. Such deed and the "Plan N-3086" thereto attached and made a part thereof, as provided in the deed, are as follows:

"This deed, made this 2d day of June, 1915, between Dora E. Pamplin (single), party of the first part, and Norfolk & Western Railway Company, party of the second part, witnesseth:

"That for and in consideration of the sum of three thousand dollars ($3,000, 00) cash in hand paid, receipt of which is hereby acknowledged, the party of the first part doth bargain, sell, grant, and convey unto the party of the second part all that certain piece or parcel of land situate in the county of Appomattox, state of Virginia, bounded and described as follows:

"Beginning at a point on the center line of the Burkeville to Pamplin Low Grade connecting line of the Norfolk & Western Railway at station 1949, said point of beginning being also in the dividing line between lands of Mrs. J. Y. Spencer and Miss Dora E. Pamplin; thence along said dividing line, between said lands, following the center of county road S. 16° 34' E. about 168 feet to a point; thence along other lands of Miss Dora E. Pamplin, parallel to and 60 feet distant easterly from aforesaid center line in a northern direction about 562 feet to a point in the dividing line between lands of Miss Dora E. Pamplin and Chas. Hindley; thence along the dividing line between saidlands crossing aforesaid center line at station 1952 plus 64 S. 59° 23' W. 186 feet to a point in the dividing line between lands of Miss Dora E. Pamplin and Mrs. J. Y. Spencer; thence along said dividing line, between said lands, following the center of county road S. 16° 34' E. about 3, 195 feet to the place of beginning, containing 1.4 acres, more or less, or as more fully shown on Plan N-3086 Revised May 22, 1915, hereto attached and made a part of this deed, it being a portion of the same property derived by the said Dora E. Pamplin under the will of Eliza T. Pamplin, dated July 14, 1891, and probated at the August term, 1891, in Will Book No. 1 at page 5, to which will reference is here made for a further description of the property hereby conveyed.

"The party of the first part hereby covenants that she is seized in fee simple of the property described above and has the right to convey the same, that the property is unincumbered, that the grantee shall have quiet and peaceable possession of same, and that she will execute such other and further assurances of title as may be requisite.

"Witness the following signature and seal. "Dora E. Pamplin. [Seal.] (Italics supplied.)

This deed was acknowledged by the grantor before a notary on June 4, 1915, and that day delivered to the railroad company.

It will be noted that the "Plan" shows a profile, on which it is shown that the railroad will be constructed above the grade of the surface of the land conveyed by the deed.

The parcel of land thus conveyed to the defendant will be hereinafter referred to as "lot A, " and the residue of the said "Pamplin home tract" as the "dwelling house land."

At the time of the execution and delivery of such deed a public road of the county, known as the Darlington Heights road, passed along the whole of the southwestern side of lot A (the southwestern boundary of such lot being the center of such road), and farther along directly in front of the said dwelling house of the plaintiff for some 138 to 150 feet to the intersection or junction therewith of another public road (the Pamplin-Charlotte C. H. road), coming from the east. The dwelling house land of the plaintiff lay to the north of and within the angle formed by the junction of these public roads, and the south side of such dwelling house land lay along the Pamplin-Charlotte C. II. road. At this time the grade of both of such roads was approximately on a level with the surface of lot A, and of the dwelling house land where such lot and land abutted on such roads.

Some time before the conveyance aforesaid to the railroad company, the plaintiff had conveyed to a nephew, Jack Spencer, an infant, in remainder after a life estate retained in herself, a parcel of some —— acres of land, which will hereinafter be called the "Spencer tract, " which lay immediately on the southwest side of the Darlington Heights road, its northeastern boundary being the center of such road, from the junction of the Pamplin-Charlotte C. H. road therewith, aforesaid, along the boundary line dividing it from the dwelling house tract and from lot A. It appears from the record that after making such conveyance the plaintiff forgot that she had retained a life estate in it, and that Mrs. J. Y. Spencer, mother of said infant, became the tenant of the Spencer tract in right of her said son.

The plaintiff had lived for many years in the dwelling house aforesaid prior to and was living therein at the time of the institution of this action, but did not occupy or use the Spencer tract, as aforesaid, as must be inferred from the evidence for the railroad company in the record.

The railroad company, something over a month before said conveyance to it of lot A, when the situation of the title and the possession of the lot and of the dwelling house land and of the Spencer tract was as aforesaid, proceeded under the statute contained in Acts of 1915 (Extra Sess.) p. 11, to locate and obtain the right of way for a connecting line between two points, Burkeville and Pamplin, on its existing main line for the more efficient and economical transportation of traffic between said two points, which the duty resting upon it as a public service corporation required it to transport. Such right of way as located by the railroad companytook therefor said lot A and a portion of the Spencer tract.

On April 28, 1915, the railroad company, by ex parte proceeding under the statute, subsection 3 of section 1291b of Pollard's Code 1904, obtained from the board of supervisors of the county of Appomattox, in which the same is located, their consent to a change of location of the Darlington Heights public road where it passed along in front of plaintiff's dwelling house land and bounded lot A, such change consisting in the abandonment of that location for such road and the relocation of it so as to extend it from the junction or intersection of the Pamplin-Charlotte C. H. road therewith, aforesaid; thence almost due west, over the Spencer tract of land, across the proposed location of the right of way of the railroad company thereon, by an undergrade crossing; and thence, after reaching the western edge of the proposed right of way aforesaid on the Spencer tract, proceeding along such edge of such right of way until it reached and passed into the former location of said Darlington Heights road where it passed the northwest corner of lot A, thence going in a northerly direction towards Pamplin.

The railroad company in this proceeding, filed before the board of supervisors plats and profiles showing such change of location of the county road; the height of the embankment for its railroad which it proposed to construct at such undergrade crossing (which was some 15 feet in height at that point), and the height of such embankment which it proposed to construct thence along the right of way it proposed to acquire across the Spencer tract and across said lot A (such embankment being from about 15 to 18 1/2 feet high from the natural surface of the ground, as it passed along in front of plaintiff's dwelling house land and dwelling house). Such plats and profiles also showed that the grade of the Pamplin-Charlotte C. H. road, where the south side of the dwelling house land of plaintiff abutted on it, would be lowered about 2 to 4 or 5 feet where this road passed along, about 50 feet south of the said dwelling house, toward the undergrade crossing—being about 2 feet below the former grade and the grade of plaintiff's dwelling house land at a roadway which she had theretofore used as a driveway and side entrance from such Pamplin-Charlotte C. H. road into such land to the dwelling house, and reaching a depth of about 4 or 5 feet below the old county road where that road formerly passed about 50 feet from and in front of said dwelling house.

The railroad company, whether before or after the said proceeding before the board of supervisors does not appear from the record, reached an agreement with the plaintiff to purchase from her lot A, to be conveyed to it for the consideration of $3,000, which was some $2,625 in excess of the market value of such lot of land. This agreement was subsequently executed by the conveyance to the railroad company aforesaid.

The railroad company also reached an agreement with Mrs. Spencer (just when does not appear from the record) for the purchase of the land necessary to be taken for...