Ridgeley v. Town of West Fairmont
| Decision Date | 15 April 1899 |
| Citation | 33 S.E. 235,46 W.Va. 445 |
| Parties | RIDGELEY v. TOWN OF WEST FAIRMONT. |
| Court | West Virginia Supreme Court |
Submitted January 30, 1899
Syllabus by the Court.
1. In an action of trespass on the case for damage to a lot situated in a town by reason of a change of the grade in front of it, the defendant may show, under the general issue that the plaintiff agreed, at the time the grade was being changed, that, if defendant laid a sewer through his lot to a point indicated by him, he would claim no damage by reason of such change, and may also show that said sewer was constructed in accordance with the agreement, and accepted by the plaintiff.
2. In an action of trespass on the case to recover damage of the character asserted in this case, the defendant may give in evidence, under the general issue, a release, or accord and satisfaction, or whatever would, in equity and good conscience, according to the existing circumstances, preclude the plaintiff from recovering, as any matters which operate a discharge of the cause of action or any justification or excuse. By this plea, all the material averments of the declaration are put in issue.
Error to circuit court, Marion county; W. S. Haymond, Special Judge.
Action by William Ridgeley against the town of West Fairmont. Judgment for plaintiff. Defendant brings error. Reversed.
E. M Showalter, for plaintiff in error.
W. S Meredith and F. T. Martin, for defendant in error.
This was an action of trespass on the case brought by William Ridgeley against West Fairmont, a municipal corporation, in the circuit court of Marion county. The facts upon which the suit is predicated as appears from the pleadings, are that the plaintiff was the owner of about one acre of land, except the coal underlying the same which fronted on the public highway, known, in 1892, as the "Fairmont and Weston Turnpike," on which was situated a two-story frame dwelling house, and a two-story frame store house and dwelling house jointly, both of which buildings stood near said turnpike. Subsequently plaintiff erected on said land another two-story frame building used for a dwelling and store house combined. Said buildings were erected and used in conformity with the grade of said Fairmont and Weston turnpike, as it existed at the time they were built, and in December, 1892, a part of the territory of Fairmont district was incorporated, and became a municipal corporation, under the name of "West Fairmont"; and in 1892 said corporation established all that part of the Fairmont and Weston turnpike lying within its limits including that part adjacent to said land, as one of its streets, and called it "Main Street," or "Locust Avenue," and in September, 1894, changed the grade and raised the surface of said street in front of, and adjacent to, said plaintiff's property, by filling the same with dirt, gravel, stone, etc., and without his consent, and against his protestations, raised the grade 56 inches higher than it was when plaintiff became the owner of said property and the houses thereon; and the plaintiff claims that he is damaged by the drainage of water on his lot caused by the change of grade, and that he is thereby deprived of all safe, commodious, and convenient egress and ingress from and to said land, and the houses thereon; and, by reason of said wrongs and injuries, he claimed $5,000 damages. On the 28th of November, 1896, the defendant demurred to the plaintiff's declaration, which demurrer was overruled. The defendant pleaded not guilty, and on the 16th of March, 1897, the case was submitted to a jury, and, after several adjournments, they returned a verdict for the plaintiff for $500. The defendant moved the court to set aside the verdict, and grant it a new trial, on the ground that the verdict was contrary to the evidence and the law, and because the court gave to the jury certain instructions at the instance of the plaintiff, which were objected to by the defendant, and refused certain instructions asked for by the defendant, and because the court excluded certain evidence offered by the defendant, which, if admitted, would have produced a different verdict. This motion was overruled, the defendant excepted, and judgment was rendered upon the verdict. The defendant took several bills of exception, and obtained this writ of error.
It is claimed by counsel for the plaintiff in error that the court erred in overruling the demurrer interposed by the defendant insisting in his brief that the action, being, in substance, ex contractu, it should have been brought in assumpsit. The damage complained of in this case, however, was indirect, and, as I understand it, trespass on the case, in an action of this character, is not only proper, but the one uniformly resorted to, in cases of the kind. See Hutchinson v. City of Parkersburg, 25 W.Va. 226; Johnson v. Parkersburg, 16 W.Va. 402; Blair v. City of Charleston, 43 W.Va. 62, 26 S.E. 341,--all cases similar, in many respects, to the one at bar, in which the action was trespass on the case. The gravamen of the plaintiff's declaration appears to be that, without the consent of the plaintiff, the defendant has raised the grade of the street in front of his property, so that surface water is thrown upon plaintiff's lot, which, with the buildings on it, is thereby damaged without the plaintiff's consent, and he is thereby deprived of all safe, commodious, convenient, and proper ingress and egress to and from said land. Now, while it is true that, where the defendant seeks to confess and avoid in trespass, a special plea is required, in the case at bar the plaintiff avers in his declaration that the grade was changed in front of his property, and the injury complained of resulted therefrom, without his consent, and under the general issue, surely, the defendant might be permitted to show that the grade was raised with his consent, especially when he was paid a consideration for it. As to the evidence which may be given under the general issue in an action on the case, Hogg, in his valuable work on Pleading and Forms (184), says: "The general issue, as we have...
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