Peddicord v. Marshall County Court
| Decision Date | 23 May 1939 |
| Docket Number | 8859. |
| Citation | 3 S.E.2d 222,121 W.Va. 270 |
| Parties | PEDDICORD et al. v. COUNTY COURT OF MARSHALL COUNTY. |
| Court | West Virginia Supreme Court |
J. W. Rickey and John K. Chase, both of Moundsville, for plaintiff in error.
A. L Hooton and Evans & Evans, all of Moundsville, for defendants in error.
FOX President.
This case comes to us on a writ of error, prosecuted by the defendant, to a judgment against it for the sum of $4,079.20 rendered by the circuit court of Marshall County on the verdict of a jury in the law action of J. C. Peddicord and Helen May Peddicord against the county court of said county.
The action of the plaintiffs is based on a claim for damages to real estate alleged to have been sustained through the widening and lowering of the grade of the highway in front of their residence property, located on the lower slope of a hill, on Highland Avenue and Waynesburg road, near but outside the corporate limits of the City of Moundsville. The alleged damages were sustained prior to the enactment of Chapter 40, Acts of the Legislature, First Extraordinary Session 1933, and at a time when the county court had the responsibility connected with the taking or damaging of property for road purposes. The various questions presented arise on the declaration, the defendant's plea of not guilty, and those developed in the trial of the case.
The plaintiffs' property, consisting of four contiguous lots fronting on the highway about 320 feet, was conveyed to Charles L. Sullivan in 1903, and in the following year he built a one-story residence thereof, with tile foundation without footers, and a basement under the southern portion of the house. At the time of the erection of this house, Sullivan worked a horse and scoop shovel for about three weeks removing dirt from the rear of the house to the front and side, but the record shows that the house rested on the natural terrain as distinguished from the graded portion. On December 20, 1910, Sullivan conveyed the property to George P. Wasmuth, who at some time added a bathroom and back porch to the house. The plaintiffs acquired the property and moved into the house about November 1, 1920, and in 1922 began to make substantial improvements which were completed in 1927, about the time the county court began the alterations in the highway of which complaint is now made. The house was rebuilt in 1927 and the greater part of the other improvements made in 1922. At the time the plaintiffs purchased the property, the house thereon was a one-story structure consisting of five rooms and a basement. Plaintiffs built a two-car tile garage, added a second story to the house consisting of three bedrooms, a hall and a bath, remodeled the downstairs and put in hardwood floors on top of existing floors, increased the size of the basement and lowered the whole thereof eighteen inches and at one point lowered the excavation two feet in order to support a chimney, removed the dirt under two rooms and built a concrete foundation under these rooms, put a concrete floor in the basement, put in two pilasters and two brick pillars in the center of the house, and installed in the basement a large heating furnace with pipes. Outside the house they constructed a concrete wall twelve inches thick, six feet high and extending along the rear of the house for thirty-five feet, and for a part of this distance re-enforced by steel rails, and also concrete walks and steps leading from the house to Highland Avenue in front. This was the state of plaintiffs' property when the county court began work on Highland Avenue and the Waynesburg road in 1927.
The highway in front of plaintiffs' property had what is termed a "paper width" of sixty feet, but the graded and used portion thereof did not exceed twelve feet. This property being located at the intersection of Highland Avenue and Waynesburg road, the county court widened these roads and graded the same to within one foot of the line of plaintiffs' lots, creating a 45~ slope about eight feet high from plaintiffs' line to the level of the road grade. The evidence tends to show that for the most part the grade of the road was not changed from that existing when the plaintiffs purchased their property and made improvements thereon, but witness Wilhelm testifies that at one point where there was a "hump" the grade was lowered "I imagine from three to four feet at the lower side", although he admits he could be mistaken on this point; and Brown, who was county engineer at the time the road work was done, says the road was lowered at the intersection of Highland Avenue and Waynesburg road, but was not lowered at the point where the walk leading from the front porch of plaintiffs' house to the highway ended; so there is doubt and confusion as to where the road was lowered, and how much, and especially as to the effect of such lowering on plaintiffs' property.
It must be clear to all that a mere showing that the road was lowered, without showing some connection between that act and what occurred subsequently, is an insufficient basis for recovery. Counsel for the defendant stress the point that the grade was not lowered and then rely on the law relating to lateral support, contending that the plaintiffs are only entitled to lateral support of their land in its natural state, and not for buildings and improvements placed thereon. The plaintiffs, while not admitting this contention, say that the grade of the road was lowered, and further, that if it was not, the alleged general rule as to lateral support does not apply to cases where property is taken or damaged by public authority, and that under Section 9, Article III of the constitution, they are entitled to all damages resulting from any cause occasioned by the work in which the county court was engaged.
It is an accepted rule of law in this jurisdiction that the change, by a public authority, of an established grade of a street or highway, with reference to which a property owner has made improvements, entitles the owner to damages resulting from such change, both to the property in its natural state, and the improvements thereon. Johnson v. City of Parkersburg, 16 W.Va. 402, 37 Am.Rep. 779; Hutchinson v. City of Parkersburg, 25 W.Va. 226; Blair v. City of Charleston, 43 W.Va. 62, 26 S.E. 341, 35 L.R.A. 852, 64 Am.St.Rep. 837; Harman v. City of Bluefield, 70 W.Va. 129, 73 S.E. 296; Jones v. City of Clarksburg, 84 W.Va. 257, 99 S.E. 484; Harvey v. City of Huntington, 103 W.Va. 186, 136 S.E. 840; French v. City of Bluefield, 104 W.Va. 129, 139 S.E. 644. A slight qualification of this rule is noted in Blair v. City of Charleston, supra, and Jones v. City of Clarksburg, supra, where a limitation is placed as to damages for improvements placed on property after the establishment of a "paper grade", but this exception does not apply to the case before us.
But the rule with respect to lateral support where no lowering of grade is involved is not so well settled. As between private owners, the rule seems to be that where one, without negligence, makes an excavation, the owner of the adjoining property is entitled to lateral support for his land in its natural state, but not for structures erected thereon. Stevenson v. Wallace, 27 Grat. 77; Tunstall v. Christian, 80 Va. 1, 56 Am.Rep. 581; Walker v. Strosnider, 67 W.Va. 39, 67 S.E. 1087, 21 Ann.Cas. 1; 1 Minor on Real Property (2d Ed.), sec. 119, p. 158; French v. City of Bluefield, supra.
There is apparent conflict in our decisions as to whether or not, in view of Section 9, Article III of our state constitution, providing for the payment of compensation where private property is taken or damaged for public use, the rule stated applies. In Jordan v. Benwood, 42 W.Va. 312, 26 S.E. 266, 36 L.R.A. 519, 57 Am.St. Rep. 859, this court said: "The provision, in section 9, art. 3, of the constitution, that private property shall not be taken or damaged for public use without just compensation, does not render a city liable for damages to property from surface water where a private individual would not be liable."
But our ruling in Kunst v. City of Grafton, 67...
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