Stewart v. Ohio River R'd Co.

• Decision Date: 06 December 1893
• Citation: 38 W.Va. 438
• Parties: Stewart v. Ohio River R'd Co.
• Court: West Virginia Supreme Court

38 W.Va. 438

Stewart

v.Ohio River R'd Co.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1898.

Decided December 6, 1893.

1. Damages Railroad

A case in winch the Rration shows that the landowner whose lot abuts on a public street, on and along which a railroad company has laid its track and runs its trains, has sued for the permanent injury to his property caused thereby.

2. Damages Railroad Companies.

Where a railroad is laid down in a public street, the abutting property is damaged within the meaning of section 9, Art. III, of the constitution to the extent of the depreciation caused by the construction and operation of the road.

3.Da mages Railroad companies.

The measure of the damages is such a sum as will make the owner whole that is, the depreciation of the market-value of the abutting property, caused by the railroad company laying their track and running their trains in the street.

4.Damages Railroad Companies.

In such case, if the fair market value of the abutting property is as much immediately after the construction of the railroad as it was immediately before such improvement was made, no damages are sustained for which a recovery can be had.

D. H. Leonard and V. B. Archer for plaintiff in error cited Lew. Em. Dom. § 225; 12 Law. Rep. Ann. 609, 615; 34 W. Va. 479; 129 N. Y. 576; 83 Ill. 535; 70 Ill. 238; 90 111. 42; 82 III. 208; 68 111. 607, 614; 70 Ill. 347; 91 Ill. 312; 118 111. 203; 75 111. 41, 47; 70 III. 324; 26 Fed. Rep. 415; 67 Ga. 386; 70 Ga, 611; 78 Ga. 276; 80 Ala. 489; 8 X. Y. Supp. 78; 50 III. 241, 246; 28 111. 73; 101 X. Y. 38, 3d. p't Syll.

C. E. Hogg and J. E. Beller for defendant in error cited 16 S. E. Rep. 819; 31 W. Va. 483; 29 W. Va. 765; 27 W. Va. 306; 34 W. Va. 232; 10 W. Va 546, Syll. p't 5; Acts (1852) p. 309; Code, c, 54, s. 48, 50 par. 6; 16 S. E. Rep. 519; 3 Am. R'd & Corp. Rep. 710; 71 Mo. 575; 101 N. Y. 98; 62 Tex. 593; 68 Tex. 223; Id. 345; 108 U. S. 317; Wood Xuis. § 864; 13 S. E. Rep. 567; 15 S. E. Rep. 788; 16 Am. & Eng. L. 987; 26 W. Va 672; 3 Am. R'd & Corp. Rep. 251; Id. 268; 24 W. Va. 674; 26 W. Va. 788; 12 W. Va. 116; 32 W. Va 487.

Bolt, Judge:

This is an action of trespass on the case brought by plaintiff Stewait against the defendant company in the

Circuit Court of Mason county on the day of April,

1889, for injury to a lot of land situate in the town of West Columbia, The defendant appeared and demurred, and plaintiff filed an amended declaration. To this also defendant demurred, but the court overruled the demurrer, and defendant entered the plea of not guilty. The jury found for plaintiff and assessed his damages at two hundred and eighty five dollars. During the trial of the cause various objections were made by defendant to the introduction and rejection of certain evidence, which appears in the certificate of evidence, which objections the court overruled, and the defendant's exceptions were noted in the certificate of evidence. The defendant also took three bills of exception No. 1 for the refusal of the court to give defendant's instruction No. 1; No. 2 for refusing defendant's instruction No. 2; and No. 3 for overruling defendant's motion to set aside the verdict and grant it a new trial, upon the ground that the verdict was contrary to the law and the evidence and was excessive. All the evidence is certified and made by reference thereto part of this bill No. 3, The court overruled the motion and gave judg- merit, and defendant obtained a writ of error with supersedeas.

The plaintiff in error (defendant below) assigns eight distinct grounds of error, which may be considered under four heads: (1) The sufficiency on demurrer of plaintiff's amended declaration; (2) in admitting for plaintiff and refusing for defendant, certain testimony on the trial; (3) in refusing to give the two instructions asked by defendant; (4) in overruling defendant's motion for a new trial.

The declaration as amended contains but one count in case. Though somewhat long, I.give it in full not alone or in the main on account of the demurrer, but because in my view it shows the gravamen the gist of the action to be permanent injury to plaintiff's right as an abutting owner in his lot on Coal street, by causing great depreciation in value; and on that question, as it may appear from both the pleadings and the evidence, the vital point in the case must turn.

"Amended declaration. State of West Virginia, Mason county, to wit: In the Circuit Court thereof.

"The amended declaration of C. V. Stewart against the Ohio River Railroad Company: C. V. Stewart, by way of amendment to his former declaration filed herein, complains of the Ohio River Railroad Company, a corporation under the laws of the state of West Virginia, which does business in said state, and has its principal office in the city of Parkersburg, in said state, and which has been duly summoned to answer a plea of trespass on the case, for this, to wit, that the said plaintiff now is, and long has been, the owner in fee simple and occupier of a certain lot or parcel of land situate in the town of West Columbia, in the county and state aforesaid, and bounded on the west by Coal street, and on the north by the public road or street leading from the Ohio river to, and intersecting with, the Ripley and West Columbia pike, so that said lot is a corner lot, and very valuable, and upon which lot or parcel of land belonging to this plaintiff is situated a frame dwelling house, storehouse, stable and other buildings necessary and proper for the free use and enjoyment of the same, and which lot, with the buildings thereon, the said plaintiff now is, and long hath been using, occupying and enjoying as a home and residence and place of business; and the plaintiff says that he used, occupied and enjoyed said premises as aforesaid, free from all obstructions, obstacles, incumbrances, interferences, or hindrances, as of a right he ought and should have done, until the happenings of the matters and things, and the acts and doings, hereinafter specified and complained of, namely, that during the time said premises were occupied, used and enjoyed by this plaintiff in the manner hereinbefore set forth, the said defendant, through and by its agents and employes, took possession and appropriated to its own use and benefit, to wit, on the

day of, 1886, in the county aforesaid, that part of said

Coal street which forms the western boundary of plaintiff's said premises, and defendant made deep and dangerous excavations in said street, and along the same, and immediately in front of plaintiff's said property, and built thereon its. rail road bed and laid its railroad track on the same, and ever since the day and year last aforesaid the said defendant has been, and still is, using the same as a railroad right of way and railroad track, and the said defendant, ever since the day and year last aforesaid, has run its cars, locomotives, trucks, hand cars, engines, and all other rolling stock over the said Coal street, in the operation and carrying on of its business as a common carrier of freight and passengers, to the great and irreparable injury and damage to the said plaintiff in the use and the enjoyment of his said premises, and without compensating him therefor.

"And the plaintiff further says that the deep and dangerous excavations and cuts made in and along said Coal street immediately in front of his premises by said defendant, as aforesaid, have entirely destroyed the use of said Coal street by this plaintiff, so that this plaintiff can not now have access to and from his said premises on the western side thereof as he had theretofore done; that his said premises front upon said Coal street, and that he can no longer approach his said premises by means of said Coal street with wagons or other vehicles; and that, said street was in constant use, in going to and from plaintiff's said premises, until it was destroyed by the said defendant, as aforesaid, Plaintiff further avers that said excavations and cuts made in said street by said defendant are deep and dangerous, and that in some places the said excavations in front of plaintiff's said premises are as much as four feet in depth, and leave a narrow strip between said cut and plaintiff's said houses and buildings not exceeding six or eight feet in width.

"Plaintiff further avers that ins only means of access to and from his said stable situate on said premises was over and along said Coal street, and that he can not now reach said stable with a wagon or other vehicle, and that his said stable is rendered almost practically useless to this plaintiff by reason of the destruction of said street by the said defendant as aforesaid; and the said railroad passes so near to the said stable that it is unsafe and dangerous to keep hay, oats, or other feed therein, or to confine or shelter stock therein, because of the great danger from fire originating from sparks issuing from the locomotives constantly passing along said street immediately in front of said stable; and the ground upon which said stable is located can no longer be appropriated to any valuable or practicable use or purpose, by reason of the loss of the use of said Coal street and its near proximity to said railroad track; and so plaintiff says that he has had to abandon the use of said stable, and the use and enjoyment of the ground upon which it stands. Plaintiff further says that the other buildings on his said lot are so close to said railroad track, by reason of the location of the said road on said Coal street, that there is great danger of their being lost and wholly destroyed by tire issuing from the locomotives of the defendant aforesaid, and this dangerous exposure to fire of plaintiff's said buildings has greatly enhanced the cost of procuring insurance thereon, and thus rendered it almost impossible for plaintiff to procure insurance against loss by fire upon his buildings aforesaid; and plaintiff says that...