McHenry v. City of Parkersburg , 66 W. Va. 533 ( 1909 )

Poffenbarger, Judge:

Julia°McHenry recovered a judgment for $750.00 against the City of Parkersburg, as damages for collecting surface water, by means of its sewer system and casting tlie same, in a body, upon her lot, to the injury of her grounds and dwelling house. Assigning several errors, the city complains of the judgment.

Plaintiff’s lot is in low ground and a small drain, generally dry except in wet weather, has always run thiough it. Street improvement and the construction of sewers in the neighborhood of the lot have facilitated the flow of water and added to the volume which passes through the lot. This drain passed right under the plaintiff’s house. The increased flow of water has somewhat enlarged it, but it is still a mere gutter. Owing to the general improvement in the neighborhood, the water stands on) the lot after a heavy rain and in protracted spells of wet weather. On one or two occasions, it has been in the house, once attaining a depth of twelve inches on the floor. The shrubbery and flowers have been injured and destroyed, plaintiff has been prevented from using the lot for gardening purposes, some of the pillars of the house have settled, throwing it out of shape and cracking the plastering, the floors have been injured and some little damage may have been done to carpets and furniture. Notwithstanding all this, plaintiff occupied the house as her residence until the 10th day of March, 1907. Many witnesses, permitted to testify, without objection, to the value of the property five years before the bringing of this suit, said it was worth from $1,500.00 to $2,500.00, and then, in response to questions, as to the value at the time the suit was instituted, said it was worthless. Others placing a high value on it prior to the injury, said it had been greatly damaged. All this testimony embodies the theory of permanent injury. It assumes the cause of injury to be irremovable and unabatable. Practically no evidence of any other kind was adduced. Mrs. McHenry’s husband, after stating the conditions, said it would require $900.00 to restore the property to the condition in which it was priof to the placing of the sewers by the city. Possibly one other witness gave substantially the same testimony. This is all the evidence in the case pertaining to the elements or. quantum of damages. It all went in without objection. Its admissibility was, therefore, impliedly assented to, but a motion to set aside the verdict challenges its sufficiency to sustain the verdict.

The case calls for what are designated, in the decisions, temporary damages. Injury to real estate differs in nature and degree. Under some circumstances, recovery may be had from time to time as damages accrue. Under others, but one recovery can be had and that includes all the injury the property has sustained in the past, and will sustain in the future. Damages, recovered in the latter class of cases, are called permanent damages, and damages recovered in the former, temporary damages. Permanent damages are given on the theory that the cause of injury is fixed and indeterminable and the property must always remain subject to it. The injured party is limited to the recovery of temporary damages, when the injury is intermittent and occasional, or the cause thereof remediable, removable or abatable. It assumes that the plaintiff himself may be able to remedy the cause of injury or relieve his property from its ill effects, or that the defendant will be induced or compelled, by the infliction of repeated judgments for damages, to remove it. Henry v. Railroad Co., 40 W. Va. 234; Godbey v. City of Bluefield, 61 W. Va. 604; Suth. on Dam., sections 114, 115, 116. Our two decisions, just cited, put cases of this kind in the class, limiting the recovery to temporary damages, and, in this we are sustained by the text cited and the decisions upon which it is predicated. The correctness of this position is not questioned here and was not in the court below. The contention is that the evidence in the case justifies a verdict for temporary damages. This we do not deny. It is also said to be sufficient to sustain a recovery for $750.00. This position is, in our opinion, untenable. In other words, we think the damages awarded are larger than the evidence will sustain.

The evidence of prior and subsequent value necessarily looks to the future, as well as to the present and the past. In effect, it says prior to the injury the property would have sold in the market for so much money, and, afterwards, it would not have sold for anything or would have sold for very little. The difference in market value is the measure of damages in cases of permanent injury, or cases calling for permanent damages. The contrary of this view of the evidence is strenuously insisted upon, but we are unable to see how its effect can be confined to the actual damage done up to the time of the institu-tiou of the action. It affords no basis for a finding otherwise than upon the theory of a depreciation in market Value and the continuance of the cause of injury. It is true., nothing is said about the future operation of this cause, but it is clearly and manifestly assumed. The evidence proves past value and value under present conditions. What is the present condition? The property is subjected to this intermittent or recurrent injury from the flowing of water. The purchaser, on a sale, would have to take it in that condition. This evidence does not assume or intimate the discontinuance of this injurious cause. Nothing suggests to the jury that it ever can be, or will be, removed. A recovery of the difference in market value now would not, according to the argument here submitted, prevent recovery of the difference in market value in as many subsequent suits as the plaintiff may see fit to institute, and, in each of these subsequent suits, a different set of witnesses may testify. While those who are introduced in this case said the property was worthless at the time of the commencement of this action, those who may be introduced in the next action may say it was only slightly injured and was worth, in their opinion, $1,500.00 or $2,000.00, and has since become worthless. This would give room for another recovery of difference in market value and the operation could be repeated ad libitum. The judgments in former actions would only prove the amount recovered, the cause of action, and the dates to which the estimates of damages extended. The record would not disclose the evidence. It is never reduced to writing and made part of the record except for appellate purposes, nor are the instructions. None would prove the value of the property at the date of the commencement of the action, as a basis of, or starting point for, the estimate in the next succeeding one. That would be an open question in the second action, and, if the evidence therein should fix it even higher than the highest proved in any former trial, and then a total, or practically total, loss, the court would have no power of control over it, and recovery on that basis would follow. This would amount to a travesty upon justice, enabling the owner to recover over and over, as upon repeated sales of the property, and still remain its owner. A verdict in a case of this class cannot stand upon suck evidence. Is there any other in the case upon which it can stand ?

Plaintiff’s husband and possibly one other witness said it would take $900.00 to restore the property to its former condition, but did not indicate what this cost would include, otherwise than by the previous detailing of the extent and character of the injury and the cause thereof. Did this include' the cost of putting a sewer through the lot to carry the water away, or of filling the lot so as to divert the water from it, in addition to 'the cost of repairing the building and loss of, and injury to, carpets and furniture, and deprivation of use and rents? No juror could say nor can we. These witnesses did not say what it would require to repair the house, fill, the gutter and compensate for loss of rents, use and articles destroyed. Their testimony goes far beyond that, affording ground for the inclusion of the cost of raising the' house and filling the lot, so as to put them above the reach of the water. This would be an improvement to the property and an abatement of the injury, not a mere reparation of the damages, such as the repair of the house and filling the gutter. It has never been done. No money has been so expended and may never be. If recovered in this action and not applied, it could be recovered over again in the next action and still not applied and so on, as long as plaintiff might care to repeat the operation, for the record of this action would not show it in any conclusive form. We repeat this would be cost of improvement as well as cost of reparation of injury, and, if such outlay had been actually made, the cost thereof in excess of what was required for reparation could not be recovered. No person can directly or indirectly charge a municipal corporation with the cost of benefits to his own property except in so far as they work reparation of injury done to it by the corporation. Godbey v. Bluefield, cited. Obviously, this evidence goes beyond the cost of repairs and other recoverable damages, but, if the construction thereof be an equally balanced question, the beam is tipped by the great mass of evidence of permanent -damages, accompanying it.

We admit the admissibility of opinion eyidence, but insist upon its weakness and upon the necessity of the statement of data to enable the jury and court to test its admissibility, weight and value; and we regard the testimony here discussed as constituting a mere scintilla of evidence, insufficient to sustain a verdict for so large an amount in view of the facts disclosed by the evidence in general. It should not have been admitted in the form in which it was offered.

We are not overlooking the caution of the court in respect to the time limitation in finding and estimating the damages. This does not cure the error in allowing a verdict to stand on evidence of the cost of unmade improvements and future injury.

Finding the damages clearly excessive, we reverse the judgment, set aside the verdict and remand the case for a new trial.

Reversed and Remanded.