Plaintiff v. Town Of Fairmont. (Dent

• Decision Date: 03 April 1897
• Citation: 43 W.Va. 259
• Court: West Virginia Supreme Court
• Parties: Yeaoer et al. v. Town of Fairmont.

43 W.Va. 259

Yeaoer et al.

v.Town of Fairmont.

Supreme Court of Appeals of West Virginia.

Submitted February 1, 1897

Decided April 3, 1897.

1. Municipal Corporations Change of Oracle Surface

Water Damages.

Where a town, in grading its streets, raises the grade so as to cast, the surface water on an adjoining lot occupied by a storeroom, if the grade of such street is not raised in violation of the Constitution, or some statute law, or the charter of the town, no action can be maintained by the adjoining lot owner for damages sustained by reason of casting said surface water on said ad joining lot, unless the surface water is collected in a body and cast upon said lot. (p. 264.)

2. Damages to Real Estate Surface Water Tenant for

Life Remainder Man Joinder of Parties.

Where a, lot injured by raising the grade of a. street, and easting surface water thereon, as above stated, is held by M. E. as a tenant for life, and G. G. is entitled to the remainder in fee, and said M. K. and G.G. are engaged in the mercantile business as partners in a storeroom upon said lot, which storeroom is permanently injured by said surface water, said M. E.and G. G. cannot recover in the same action for damage done to the life estate, the remainder, and the joint mercantile business by raising the grade of said street and causing the surface water to flow on said lot. (p. 264.)

3. Damages to Real Estate Tenant for Life RemainderMan Separate Aetions.

Where a tort upon realty affects both the estate of a tenant for life and that of a remainder-man, each may sue separately, and, as the damages are apportionable, eacli recovers damages to cover the injury done to his estate. Neither can recover damages covering the entire injury to both estates, (p. 265.)

Error to Circuit Court, Marion county.

Action by George Yeager and M. E. Yeager against the town of Fairmont. Judgment for plaintiffs, and defendant brings error.

Reversed.

W. 8. Raymond and W. 8. Meredith, for plaintiffs in error.

Dovener & Coniff, for defendants in error. English, President:

This was an action of trespass on the case brought by George G. Yeager and M. E. Yeager against the town of Fairmont, in the Circuit Court of Marion county, to recover damages alleged to have been occasioned by a change of grade in the streets of said town adjoining the property of the plaintiffs. A demurrer to the plaintiffs' declaration was interposed by the defendant, and upon consideration was overruled by the court, and thereupon the defendant plead not guilty, and issue was thereon joined. On the 12th day of July, 1895, the case was submitted to a jury, which resulted in a verdict for the plaintiffs for the sum of two thousand five hundred and fifty dollars: and thereupon the defendant moved the court to set aside the said verdict, and grant it a new trial, upon the ground that said verdict was contrary to the law and the evidence, and because of the improper instruction given by the court to the jury at the instance of the plaintiff's, and because of the variance between the allegations of the declaration and the proof, and because the damages assessed by the jury were excessive; which motion was overruled by the court, and the defendant excepted to said ruling, and asked the court to certify the evidence. On the 18th of July, 1895, judgment was rendered upon the said verdict and the defendant applied for and obtained this writ of error.

The first error assigned and relied upon by the defendant is to the action of the court in overruling defendant's demurrer to plaintiff's declaration. Counsel for the plaintiff in error insist that the court erred in overruling said demurrer for the following reasons:

The declaration alleges that the plaintiff George G. Yeager was the owner in fee simple of the real estate claimed to have been injured, and that the plaintiff M. E. Yeager was the owner and possessor of a life estate in the same; that this is impossible. A fee simple being the highest estate known to the law, it is the entire and absolute property, and it is impossible for one plaintiff to own the fee simple while the other owns a life estate in the same property at one and the same time; citing Tied. Real Prop. § 36, for the definition of "fee simple," where it is said:" 'Fee simple' is a freehold estate of inheritance, free from conditions and of indefinite duration. It is the highest estate known to the law, and is absolute, so far as it is possible for one to possess an absolute right of property in lands."

It is also contended that allegations of special title must be proved as laid, citing 1 Chit. PI. 371), 380, 384, and insisting that it is absurd to contend thai the special title as laid in the declaration can be proved.

By referring to the declaration, it will be seen that it is alleged that, at the time of the committing by the defendant of the grievances hereinafter mentioned, the said plaintiff, George G. Yeager, was and is the owner in fee simple, and the said M. Yeager was the owner and possessor of a life estate in a certain parcel or lot of ground lying within the corporate limits of the said town of Fairmont, Marion county, W. Va., which is described in the declaration, and which said George G. Yeager and M. E. Yeager, as joint plaintiffs, complained was damaged by raising the grade of the street adjoining thereto in said town in the manner set forth in the declaration. The contention of the defendant is that this was a misjoinder of plaintiffs, and the first question for consideration is whether this question can be raised by demurrer, or whether it should have been properly raised by a plea in abatement. The character of the interests owned by the respective parties is averred on the face of the declaration. When such is the case, we find the law, as to the manner in which the question may be raised, stated in 1 Chit. PI. p. To, as follows: "If, however, too many persons be made co-plaintiffs, the objection, if it appear on the record, may be taken advantage of either by demurrer, in arrest of judgment, or by writ of error." The same author, on page 73 of same volume, says: "When two or more persons are jointly entitled to have a joint legal interest in the property affected, they must in general join in the action, or the defendant may plead in abatement, and, though the interest be several, yet if the wrong complained of cause an entire joint damage, the parties may join or sever in the action; but as the courts will not in one suit take cognizance of distinct and separate claims of different persons, where the damage as well as the interest is several, each party injured must in that case sue separately." See 17 Am. & Eng. Enc. Law, p. 588, where, in speaking of parties to actions, it is said: "All the plaintiffs must have an interest in the subject-matter of the action and in obtaining the relief demanded, and therefore two or more plaintiffs, having distinct causes of action, may not be joined." Hogg, in his valuable work on Pleading and Forms (page 30, § 43), says, under the heading of "Distinct and Separate claims of Different Persons in One. Suit": "As to joinder of plaintiffs in actions of tort, it is a general rule that, if they have a joint interest in the property affected, they must join in the action or the defendant may plead the nonjoinder in abatement. But a joint tenant or tenant in common need not join his co-tenant in an action to recover the common real property in unlawful entry and detainer. Each has a right to the whole as against strangers and wrongdoers. But if the action concern personal property, they must join. If parties have several and distinct interests, they might sue severally. Courts will not take cognizance in one suit of distinct and separate claims of different persons where the damage, as well...