Powell v. Town Of Wytheville

• Citation: 95 Va. 73,27 S.E. 805
• Parties: POWELL v. TOWN OF WYTHEVILLE.
• Decision Date: 29 July 1897
• Court: Supreme Court of Virginia

27 S.E. 805

95 Va. 73

POWELL

v.TOWN OF WYTHEVILLE.

Supreme Court of Appeals of Virginia.

July 29, 1897.

Municipal, Corporations—Public Improvements —Liability for Negligence— Province of Jury.

1. If a town, in exercising its authority to improve a street, fails to do the work in a proper and skillful manner, a common-law liability arises for all damages not necessarily incidental to the work, and chargeable to the unskillful and improper mode of executing it.

2. Whether it was necessary for a town, in repairing a street, to fill up the gutter draining an abutter's premises, and, if necessary, whether it was practical to substitute other means to carry off the water, are questions of fact bearing on the question whether the town was guilty of negligence in doing the work.

Error to circuit court, Wythe county.

Action by Annie S. Powell against the town of Wytheville. From a judgment sustaining a demurrer to the declaration, plaintiff brings error. Reversed.

A. A. Campbell, for plaintiff in error. Boiling & Stanley, for defendant in error.

BUCHANAN, J. This is a writ of error to the judgment of the circuit court for Wythe county, sustaining a demurrer to the plaintiff's declaration, which, omitting the formal parts, is as follows:

"For whereas the plaintiff, on the 1st day of December, 1892, was and is now the owner in fee, possessed of a certain house and lot of ground on the southwest intersection of Church and Union streets, and running back between parallel lines on Union street about 190 feet, in the town of Wytheville, in Wythe county, aforesaid; the said lot of ground being then and now inclosed by plank fences and palings, and used by the plaintiff as a residence and garden and stable. And the plaintiff avers that up to the time of the act or acts of the defendant, its officers and agents, herein complained of, there was a ditch or depression or gutter running along Union street near the line of, and running parallel with, plaintiff's lot, which emptied into, first, a sink and depression in said street, and then into a flume or funnel leading into a culvert running under said Union street, a few feet beyond the line of said plaintiff's lot, which said ditch, depression, or gutter conveyed all the water that flowed from said street and plaintiff's lot, aforesaid, to said flume or funnel, aforesaid, where it passed into its proper channel, and was carried off. And the plaintiff further avers that the defendant, its officers and agents, on the day and year aforesaid, unlawfully, wrongfully, negligently, carelessly, unskillfully, and injuriously filled up the ditch, depression, or gutter, and in the place thereof unlawfully, negligently, carelessly, unskillfully, and injuriously erected thereon an embankment of dirt and stone from four to six feet above the level and grade of Union street, and raised the grade of the flume or funnel which carried...