Southside R. Co. v. Daniel

• Decision Date: 13 March 1871
• Citation: 61 Va. 344
• Parties: SOUTHSIDE R. R. CO. v. DANIEL.
• Court: Virginia Supreme Court

61 Va. 344

SOUTHSIDE R. R. CO. v. DANIEL.

Supreme Court of Appeals of Virginia.

March 13, 1871

Joynes, J., absent.^[a1]

1. In an action on the case for damages to plaintiff's land there is the plea of not guilty, on which issue is joined and there is a special plea, to which there is a special replication concluding to the country. To this there is no rejoinder, and the record does not say that issue was joined upon it; but the parties go to trial, and the subjects of the special plea and replication are contested before the jury which renders a verdict for the plaintiff. No objection having been taken to the want of joinder of issue in the court below, it seems that the objection cannot be taken in the Appellate court.

2. In such a case if the subject of the replication is such that the defendant cannot rejoin special matter without a departure from the defence set up in his plea, but must take issue upon the replication, the nonjoinder of issue will be cured by the statute.

3. Two actions on the case are brought in the same court at the same time, by the same plaintiff against the same defendant. The same act of defendant is charged as the cause of the damage in each case; but the damage in one case is charged to be to the plaintiff's land, and in the other to the crops grown and growing upon it. The case as to the crops is the first tried, and the evidence is as to the crops, and there is a verdict and judgment for the defendant. This verdict and judgment cannot be set up as an estoppel to the plaintiffs in the other action for damages to the land.

4. A railroad company has the land of R. condemned for its road and the commissioners assess the damages, and their report is confirmed, and the company pay the amount of the damages assessed to R. R. sells the land to D. D. may maintain an action against the company for injury to his land done since the purchase, which could not be foreseen and estimated for by the commissioners.

5. In such cases the assessment of damages is only a bar to an action for such injuries as could properly have been included in such assessment. The commissioners are bound to presume the company will construct its works in a proper manner, and they have no right to award damages upon the supposition that the company will negligently and improperly perform its work. A failure to do so by the company will, therefore, impose a liability to any one who may sustain any loss or injury by reason of such negligence.

In February, 1857, George W. Daniel instituted an action on the case in the Circuit court of Prince Edward county, against the Southside Railroad Co., for damages done to the plaintiff's land. In his declaration, he charged, that he was the owner of a tract of land of eight hundred and fifteen acres, bordering upon the Appomattox river; through a portion of which land two water courses flow, known as Big and Little Buffalo, and uniting in the plaintiff's flat lands; and Big Buffalo, known as Buffalo river after the junction of the two streams, falls into the Appomattox river, on the lands of the plaintiff; about five hundred acres of which lands are Appomattox and Buffalo low lands. Buffalo river, after it receives Little Buffalo, flows through a narrow pass or flat, about two hundred feet in width, formed by a rock or bluff on the west bank of Buffalo river and the hill lands on the east, leaving, naturally, that space for the escape of the flood waters of Buffalo river; and, in addition to which space, there was a sink or low place in the midst of the plaintiff's low lands west of Buffalo river, over which pass of about two hundred feet at Buffalo river, and the sink or low place the flood waters of Buffalo were accustomed to flow and escape without destruction. And he charges that the defendant made an embankment and other structures running on, to and across the Buffalo river, at the said pass of about two hundred feet, without leaving sufficient arches or water ways to allow the waters of the Buffalo river to escape over the said pass and the sink in the midst of the plaintiff's low lands, as they had been accustomed, whereby the said sink or low place on the plaintiff's lands was wholly obstructed, and whereby, in the month of August, in the year 1856, the flood water was accumulated and penned back upon the low lands of the plaintiff, above and south of the said embankments and other structures, until they broke and washed down a portion of said embankment at Buffalo river at the said pass, permanently obstructing the said pass, to the sobbing and rendering permanently unfit for cultivation, a large portion of the plaintiff's low lands south of said embankment and other structures, of great value, viz: to the value of $9,500, and whereby the lands north of and below said embankments were greatly washed, abraided and injured; to the damage of the plaintiff $10,000.

At the March term of the court for 1858, the defendant appeared and pleaded " " not guilty; " on which issue was joined. The defendant also pleaded specially-- That the defendant was a company incorporated by the General Assembly of Virginia, for a work of internal improvement: that before the embankment and other structures mentioned in the declaration were constructed, commissioners, appointed by the County court of Prince Edward, ascertained and reported to the County court, that $1,362 was a just compensation to the tenant of the freehold of the lands in the declaration mentioned, for the portion of the lands proposed to be taken by the defendant for its purposes, and for the damage to the residue of the said lands beyond the peculiar benefits to be derived in respect of such residue, for works to be constructed by the defendant. That the defendant paid the amount of $1,362 to the tenant of the freehold; and that the County court of Prince Edward confirmed the report and ordered it to be recorded; and that afterwards the defendant constructed the said embankment and other structures in the declaration mentioned; and this the defendant is ready to verify.

To this second plea the plaintiff replied, that the embankment and other structures were so improperly and negligently constructed by the defendant, that by reason thereof the lands of the plaintiff had been greatly damaged; and that the said damages were not estimated or ascertained by the commissioners in their assessment and report in the plea mentioned, and this he prays may be enquired of by the country.

There was no issue made up upon the special plea; the entry on the order book, after stating the issue on the plea of not guilty, is: and the defendants filed their special plea in writing, to which the plaintiff filed his replication in writing; and it is ordered that this suit be continued until the next term.

The cause came on to be tried at the August term, 1859, of the court, when the jury found a verdict for the plaintiff, and assessed his damages at one thousand dollars. The record says the jury were sworn to try the issue joined; and the verdict is upon the issues. The defendant thereupon moved the court for a new trial; but the court overruled the motion, and rendered a judgment upon the verdict; and the defendant excepted.

The judge certifies a great many facts; but upon other important points he certifies that the evidence was so conflicting that he could not certify the fact in relation to them. It appears that at the time damages were assessed by the commissioners, the land was in the possession of the executor of Judith Randolph, and it was shortly afterwards sold to the plaintiff. In the conclusion of the bill of exceptions, he says: " On many points arising during the protracted trial of this case, a number of witnesses were examined, whose testimony was so conflicting that it is with great difficulty that the court can certify any facts as distinctly and clearly proved, except such as were contained in papers exhibited." And " that the jury were sent to view the lands of the plaintiff, and the works of the defendant thereon, and the court cannot tell what effect such view had upon their minds, except so far as the result of said view may appear in the verdict rendered by them."

Among the papers introduced in evidence by the defendant, and set out in the bill of exception, is the copy of the record of another suit brought by the same plaintiff against the same defendant. This was an action on the case, brought at the same time in the same court, for injury to the plaintiff's crops. The declaration sets out the description of the plaintiff's land, and the obstructions of the defendant, and also the causes of the damage sustained, in the same terms as are employed to set them out in the principal case; and refers to the same flood of August, 1856, as the cause of the damage complained of; but charges that the flood waters became accumulated and penned back upon the lands of the plaintiff above and south of said embankment and other structures, to the utter destruction and loss of the crops of the plaintiff then and there grown and growing upon that part of the plaintiff's low lands, and on the low lands north of said embankment and other structures, of great value, viz: and then sets out the different kinds of crops, with their value, to the damage of the plaintiff of ten thousand dollars.

The special pleas and the replication are the same in both cases; and there is no issue on the replication; but the entry on the order books is the same.

In August, 1858, the cause was tried, when the jury found that the defendants are not guilty in the manner and form as the plaintiff against the said company hath complained. And thereupon the plaintiff moved the court for a new trial which motion was overruled; and a judgment rendered for the...