Watts v. Norfolk & W. R. Co.
| Citation | 39 W.Va. 196 |
| Court | Supreme Court of West Virginia |
| Decision Date | 31 March 1894 |
| Parties | Watts v. Norfolk & W. R. Co. |
Grant Damages Railroad Company. When one grants to a railroad company a strip of land for its use in the construction of its railroad, all damages to the residue of the tract arising from construction, which can betaken into consideration in the assessment of compensation under proceedings for condemnation, are released, and he can not recover therefor against the company, nor can his subsequent alieneeof residue, (p. 199.)
Condemnation of Land.
Principles for assessment of compensation in condemnation proceedings discussed, (p. 200.),
Grant Railroad Company Ferry.
Injury to a private ferry in case of such grant as above supposed, arising from obstruction of one of its approaches by the proper construction of the railroad can not be the subject of an action by the landowner against the company, (p. 202.)
Grant Damages Private Way Roads.
In case of such grant, injury to a private way from such construction is not the subject of an action, but injury to a public road, peculiarly affecting such landowner, is. (p. 203.)
Grant-Damages.
In case of such grant, injury to a dwelling louse upon such residue from the careful blasting of rock in construction is not the subject of an action; but rock so deposited on such land must be removed within a reasonable time, else it will form the basis of an action, (p. 205.)
Grant Damages Nuisance.
Afill or bar made in a stream by blasting and throwing into it rock and other refuse material in the work of Construction of such railroad, which fill is not necessary for the construction and maintenance of the railroad, and which entails injury to a mill situate on such residue, is a private nuisance, ard ground of action against the company, (p. 206.)
Grant Damagp;s Nuisance.
Where the cause of injury is in its nature permanent, and a recovery for such injury would confer a license on the defendant to continue it, the entire damages may be recovered in a single action; but where the cause of injury is in the nature of a nuisance, and not permanent in character, but such that it may-be supposed that the defendant would remove it rather than sutler at once entire damages, which it might inflict if permanent, then the entire damages, so as to include future damages, can not be recovered in a single action, but actions may be maintained from time to time as long as the cause of the injury continues, (p. 207.)
Grant Damages.
Where an actionable wrong by the defendant is shown, the plaintiff may recover nominal damages from the mere fact of such wrong;.but, if compensatory damages are asked, the plaintiff must in some way show, by evidence, data and means by which the jury can ascertain and tlx the amount of damages. The jury can not go by merely arbitrary conjecture, (p. 209.)
Floatable Streams Damages Nuisance.
Adam erected in a floatable stream to furnish power to operate a mill useful to the public, under authority duly had from a county court, is not a public nuisance, though without sluice, and though it obstruct navigation; and a railroad company which, by an unlawful act in the construction of its road, inflicts injury upon the mill, can not excuse itself for the wrong by the plea that such dam is a public nuisance, (p. 211.)
10. Nuisance.
Public nuisance right of private abatement discussed, (p. 112.)
11. New Trial.
A new trial will not be allowed because the jury disregarded an instruction erroneous in law. (p. 213.)
Campbell & Holt for plaintiff in error cited Code (1887) c. 43, s. 31; 32 W. Va. 6; 3 Gratt. 632; 29 W. Va. 407; 17 S.-E, Rep. 536; Abb. Tr. Br. 42; Pierce R'ds 159-161, 496; 2 Wood R'y 761; Mete. (Mass.) 563; 1 Wood R'y 601; Wood May. Dam. 141; Sedg. Meas. Dam. (5th Ed.) 155; 3 Suth. Dam. §§ 1038, 1039, 1041; 1 Suth. Dam. § 9 et seq.; 1 Suth. Dam. § 2; Code (1891) c. 44, ss. 24, 27; 33 W. Va. 14.
Marcum & Peyton for defendant in error cited Code (1891) c. 44, ss. 24, 7; 33 W. Va. 307; Id. 39.
Brannon, President:
In an action of trespass on the case by Harrison Watts against the Norfolk & Western Railroad Company in the Circuit Court of Wayne county, Watts recovered judgment for one thousand and seventy four dollars, and the company brought the case to this Court by writ of error.
In his declaration Watts complains of several wrongs done him by the company. The first "wrong complained of is that the railroad company built a stone wall below his milldam extending into and above the same, and filled in on both sides' of said wall with earth, siones and other substances, whereby the current of Twelve Pole creek was diverted, impeded and obstructed, and caused to run against the plaintiff's gristmill and sawmill, and that caused the bank on which the same are built to be cut away and undermined, thereby diminishing and destroying the capacity of the water wheel to operate and propel the machinery of said mills, and their capacity to grind grain and saw lumber, and injuring his land. Let us take up first this ground of action.
By deed dated March 20, 1890, Chapman Fry conveyed to the West Virginia & Ironton Railroad Company a strip of land for the construction of its railroad, which strip was transferred to the Norfolk & Western Railroad Company, being a strip out of land owned by Fry; and afterwards, on May 5, 1891, Fry conveyed to the plain tiff', Watts, the said land, reserving and excepting the right of way conveyed to said railroad company by said deed of March 20, 1890. Thus the company had the older and better right to the land conveyed to it for right of way, with all rights and privileges going with such right under the law. It had the right, as owner thereof to use it as it pleased for the purpose of the construction of its road, provided it used the same in a prudent, reasonable way. considering the nature of its use, and not in an improper, negligent way, inflicting unnecessary injury on others. It had the right, as against Fry, to build a wall to stay and support its roadway and protect it against the inroads of the stream. Suppose this wall, if built in a proper manner, did entail permanent injury upon Fry by the diversion of the stream's current againsts his mills, lessening their capacity, or injuring the banks, he can recover no damage on that score.
If, instead of acquiring the right of way land by purchase, the company had caused it to be condemned for its use, the compensation to Fry would include, not simply pay for the land actually taken, but damages to the residue of the tract,. I will not enter upon any elaborate argument to prove that such injuries or damages as are complained of as resulting from said wall would be considered and taken into the assessment of damages upon an inquisition in a condemnation proceeding under section 14, c. 42, Code 1891, they being such as might be reasonably anticipated from the use to which the land was to be devoted, and naturally, directly and proximately resulting from such use of the land. I will refer to the following authorities touching the subject of what elements are to be considered in fixing compensation, not for the land taken, but for damages to the residue: Railroad Co. v. Shepherd, 26 W. Va. 672; 2 Wood, R, R. §§ 258, 259. The sum is to cover past, present and prospective damages to such residue that are the natural, necessary, or reasonable incident to the work. 3 Sedg. Dam. 164. From such damages to the residue, but not from compensation for the land actually taken, may be deducted peculiar benefits to be derived in respect to such residue from the work; not benefits of a general character, shared by the owner of the residue in common with other owners.
Authorities bearing on the question of what benefits may be so deducted are the following: James.River $ K. Co. v. Turner, 9 Leigh, 313; Moire v. Falconer, 10 Gratt. 18; Mitchell v. Thornton, 21 Gratt. 164; Railroad Co. v. Tyree, 7 W. Ya. 693; Railroad Co. v. Foreman, 24 W. Ya. 662. Injury, though unforeseen, is yet presumed to have been considered in the assessment. 2 Wood, R. R. 1034; Aldrich v. Railroad Co. (53 Am. Dec. 212.)
As Fry could not recover from injury from such wall, neither can Watts, as he purchased from Fry later, and in law, and by the reservation in his deed, in fact subject to the railroad company's right. The fact that the company claims, not under condemnation, but under a purchase or grant, does not alter the case, and entitle Watts to recovery from injury from the wall, because a grant of right of way is a waiver of all such damages as are assessable under an inquisition, as, in such case, if the grantor did not intend to wTaive damages, he should have provided against injury. Opinion in Horstman v. Railroad Co., 18 B. Mon. 222; Mills, Em. Dom. § 110; Norris v. Railroad Co., 28 Yt. 99; Babcock v. Railroad Co., 9 Mete. (Mass.) 553; 1 Wood, R. R. 698; Hatch v. Railroad Co., 25 Yt; 49, 69; 2 Redf. R. R. 23; Pierce, R. R, 133; Conioell v. Railroad Co, 81 111. 232; Boothby v. Railroad Co., 51 Me. 318. Though, in such case, there be damage, it is damnum absque injuria damage without violation of a right, Rood v. Railroad Co., 18 Barb. 80.
The case of Railroad Co. v. Smith, 111 111. 363, is very apt in this case. It held on common-law principles that, "when anything is granted, all the means to attain it, and all the fruits and effects, are granted also by presumption of law and will pass inclusive together with the thing by the grant of the thing itself, without the words 'with its appurtenances, ' and any like words;" that when the grant is for a certain use, neither the grantor nor one claiming under him can object to such use, and recover damages resulting therefrom; that "where a person conveys a right of way over his land, it will be conclusively presumed that all the damages to the balance of the land, past, present, and future, were included in the consideration paid him for his...
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