Perkins v. City of Princeton
Perkins v. City of Princeton
Opinion of the Court
For alleged errors in rulings upon offers of evidence rejected, objections to evidence admitted, an objection to an instruction given and a request for an instruction refused,
The property in question was situate at the intersection of North Walker Street and Honaker Avenue, in the city of Princeton, and consisted of a corner lot and a hotel building erected thereon. The improvement by which it is alleged to have been damaged, was made on North Walker Street, one of the main thorough-fares of the city. Running in front of the hotel property and up and down declivities, it extends to the court house which seems formerly to have been the central point of the town. Before this improvement was made, it was unpaved and, of course, occasionally muddy. The hotel property lot lies in a ravine or small valley and the frontage thereof is nearly level, but the street ascends a grade on each side of it. The improvement consists of alterations of the grade, pavement of the street and construction of ten-foot sidewalks. This, of course, disposed of the mud holes and mud, improved the grade and facilitated travel. ' The hotel structure was a two story building one portion of which was brick and the other frame. The entire length of the building was -82 feet. In the original condition of the street, the entrance to the brick portion of the building was slightly’ above the street and the frame portion thereof just about level with the sidewalk. The change in grade put the entrance to the brick building at about the elevation of the sidewalk and the floor of the porch of the frame portion thereof about a foot and a half or two feet below the sidewalk.
The property was used for hotel purposes, in the condition in which it was left by the alteration of the street and sidewalk, for a period of about four years, and the cost of raising the frame part and betterment of the entire building was $1,558.00. The estimated cost of the improvements consisting of an increase of four feet in length, the addition of some small closets and the repainting of the property, was $240.00, which deducted from the total cost, leaves $1,318.00,
An effort was made to elicit from some of the plaintiffs’ witnesses, by cross-examination, the fact that there was a general depreciation in the value of the plaintiffs’ property and of all other property in the section of the town in which it was located, at or about the time of the improvement complained of, by a shifting of business and settlement toward another section, and that the prices of property in the neighborhood in which the hotel was located, were considerably inflated immediately before the improvement of the street. All of this the court ruled out. Upon a proper application of the legal test of reduction in market value by reason of street improvement, the general depreciation of values in the neighborhood of the property is immaterial. Theoretically, the comparison of the value immediately after with the value immediately before allows but an-instant of time and affords no room for the operation of general appreciation or depreciation. Guyandotte Valley Railway Co. v. Buskirk Bros., 57 W. Va. 417; Parks v. Boston, 15 Pick. (Mass.) 198; Cobb v. Boston, 112 Mass. 181; In re Department of Parks, 53 Hun. (N. Y.) 280; Railway Co. v. Swinney, 59 Ind. 100; Kerr v. Park Commissioners, 117 U. S. 379. The trial court enforced this rule rigidly in its supervision of the examination of the witnesses. In the case of one of those from whom information of general depreciation wás sought bjr cross-examination, the court, after stating the rule, asked him if he based 'his opinion as to the difference in market value upon the fact that the street was raised and left the building relatively lower than it was before, and the response was affirmative. The other from whom such information was sought was treated in the same way. After hav-mg stated on his examination in chief, what he thought the damage was, the court very fully and carefully explained the rule to him and required him to state the value both before and after. He was then asked if, in his opinion, the property was peculiarly benefited and he replied that he did not think so. No error in these rulings is perceived.
An assignment of error based upon the refusal of the court to permit a witness to answer a question propounded on cross-examination, as to whether the prices of real estate in the neighborhood of the hotel were inflated immediately before the improvement was made, by reason of encouraging prospects for the town, is not well taken, since there was no avowel of what the answer would have been, if the relevancy of the matter referred to and the propriety of the question on cross-examination be conceded. State v. Clifford, 59 W. Va. 1, Syl. 9.
The admission of the testimony of two or more witnesses to the blowing in and collection of rain water and snow on the porch of the frame part of the building, before it was elevated to the level of the sidewalk or a point above it, was obviously proper. Right of recovery of damages for such an alteration of the grade of a street as exposes buildings on abutting lots to injury in any manner and curtails their usefulness and their convenience and comfort to occupants for residence or business, is well settled in this state. Godby v. Bluefield, 61 W. Va. 605; Barnes v. Grafton, 61 W. Va. 408; Blair v. Charleston, 43 W. Va. 62. Circumstances not constituting in themselves substantive grounds of action may well be admitted, in evidence as tending to prove loss of market value of the property, which is such a ground. In the absence of that ground, the same thing might itself be actionable. But it cannot well operate in both ways at the same time. The collection and casting of surface water upon a lot in bodies would be actionable, but the mere running of surface water from one lot to another, in consequence of the improvement of the former would not be. However, if the raising of the grade of a street impairs access to -a building on an abutting lot and the situation thus produced is aggravated by accumulations of surface water, snow and ice which would not otherwise occur, these facts all enter into the reduction in the market value of the property, occasioned by the raising of the grade. The resultant annoyances from rain, snow and ice are only some of the numerous inconveniences caused
Two questions seeking the opinions of witnesses, as to the amount of the damages, if any, occasioned by the raising of the grade, less special, but not general, benefits were objected to on the ground that they suggested injury. Revelation of the subject matter of any question necessarily carries with it a suggestion. If this objection should be sustained, it would be very difficult to propound a question in any trial, and the rule might vex the proposer himself, when he happens to carry' the burden of proof. The 'questions do not suggest answers desired.
The instructions were in the usual form. No error therein is perceived. The subject matter of the rejected instruction offered by the defendant is clearly embraced by its instructions Nos. 4 and 6.
The judgment is clearly right and will be affirmed.
Affirmed.
Reference
- Status
- Published