Norfolk & Western Railway Co. v. A. C. Allen & Sons

95 S.E. 406, 122 Va. 603, 1918 Va. LEXIS 125

• Court: Supreme Court of Virginia
• Decided: March 21, 1918
• Status: Published

Opinions

Burks, J.,

delivered the opinion of the court.

The facts of this case .are as follows: Prior to 1901 the railroad company had been taking water from Lockett’s creek with a pump having a five-inch intake and four-inch discharge pipe. About 1901 or 1902 it changed the location of its tank and pumping-station, and also increased the pipes connected with the pump, so as to have a six-inch intake and five-inch discharge pipe. In 1901 the Allens bought a mill site on the creek below the pumping-station and erected thereon and equipped a mill for grinding wheat and com, and sawing lumber. It is not claimed that the water taken from the creek at that time or at any time prior to 1907 in any way injured Allen & Sons. The pumping-station was lawfully erected for the purpose of supplying, the needs of the company, and it continued to take the water as formerly from the creek. In 1907, however, the traffic on the railroad increased to such an extent that it was necessary to take more water from the creek, and from 1907 to 1912 it was claimed that the water taken from the creek so diminished the supply as greatly to injure Allen & Sons, and in the latter year they brought an action at law against the railroad company to recover damages for the previous five years, and also filed a bill for an injunction to enjoin the railroad company from further taking water from the creek. As the railroad company was a public service corporation, and the water was necessary for its purposes the injunction was denied, but the case was continued on the docket. At the trial of the action at law there was a verdict and judgment in favor of the plaintiffs for $4,000. To this judgment a writ of error was awarded by this court, and, on the hearing, the judgment of the trial court was affirmed. A petition for a rehearing was filed and the case was reheard and decided January 13, 1916, reaffirming the judgment of the trial court. The principal question then involved was whether or not the injury done to the plaintiffs was permanent and continuous, or was intermittent, and it was held by this court that the injury inflicted on the plaintiff's did not consist in the installation of the pumping machinery, but in taking the water from the stream, and as this might be stopped at any time, and was intermittent at. all times, entire damages could not be recovered in one action, but that each successive unlawful taking of the water gave the plaintiffs a new cause of action. Norfolk & Western R. Co. v. Allen, 118 Va. 428, 87 S. E. 558.

The judgment of this court was certified to the circuit court in February, 1916. On August 24, 1916, Allen &, Sons instituted a new action against the railroad company to recover, it is said, for the damages sustained since the former recovery, but the declaration is not copied into the record, and we have no means of ascertaining accurately the exact extent of their claim. There was then pending the chancery suit praying an injunction which had been instituted simultaneously with the first action for damages, and this second action for damages.

It was stated by counsel for the railroad company both in his brief and in the oral argument in this court, and not denied by opposing counsel, that at this juncture, the railroad company, which had the- right to condemn the water, proposed to institute condemnation proceedings for that purpose, but finding that the suit in equity was still on the docket, as also the second action at law, and that complete justice might be done in those cases and a multiplicity of actions avoided, proposed that the whole question should be settled by issues to be ordered in the chancery suit. The suggestion was made therefore to the court that the litigation should take this form. This suggestion was accepted, as appears from the opinion of the circuit court, and thereupon an order was entered in the circuit court on the chancery side, directing “that a jury be empanelled at the bar of this court to report to the court for its consideration in said chancery cause its finding upon the following issues, (1) what sum of money, if any, the plaintiffs should recover as damages for the diversion of - the water by the defendant from Lockett’s creek, from the third day of July, 1912, to the date of the trial of this issue; and (2) what damages, if any, will the plaintiffs sustain in future by the continued diversion of water by the defendant from said stream.”

It will be observed that both of these issues 'were confined to the actual damages sustained, or to be sustained, • by the Allens. Whether or not punitive damages were claimed in the declaration we have no means of knowing, as the declaration is not copied into the record. The subject was not remotely referred to in the order for the issue. In response to these issues, the jury awarded $4,417.00 for the damage actually sustained, and $5,933.33 for the damage to be sustained, These issues were tried on the law side of the court, and the verdict was certified to the court on its chancery side. A decree was entered against the defendant for the amounts in the chancery suit, and it is from that decree that the present appeal is taken.

A number of exceptions were taken to the action of the trial court during the progress of the trial, but it is not deemed necessary to pass upon them all. We shall notice such only as seem to be material and necessary for the guidance of the trial court on another trial.

It is insisted by the appellees that the appellant has no standing in this court because the motion to set aside the verdict and award a new trial was made before the law judge and not before the chancellor. The circuit court has both common law and chancery jurisdiction, and the same judge administers both. It is immaterial before which branch of the court the motion is made. This was settled in Meade v. Meade, 111 Va. 451, 69 S. E. 330, which is very similar to the instant case.

Counsel for the appellant insist that we shall consider this case as an appeal in any other chancery case, and treat the evidence adduced on the trial of the issue as though it had been given in the form of depositions. He says, amongst other things, “your petitioner does not wish this case sent back for further hearing, but asks it may be treated as a chancery cause, and a final decree entered in this court such as should have been entered in. the court below.” It is an all sufficient answer to this request to say that it was pre-eminently a case for the award of an issue by the trial court, and it would have been error not to have awarded it. The case, in this respect, does not stand on any different footing from other suits in chancery wherein an issue of fact is properly awarded. There was no certain standard for the admeasurement of the damages to be assessed, and there was serious conflict in the testimony as to the amount of the damage inflicted. The sole question submitted to the jury was the amount of damages to be awarded the plaintiffs for the injury sustained and to be sustained, by reason of the acts done and proposed to be done by the defendant. No other question was submitted to them. Their assessment of the damages was approved by the trial court, and where this is the case, and no error is pointed out in the action of the court or the conduct of the case, the finding of the jury will not be disturbed unless it is palpably and obviously erroneous, or is without evidence to support it. Barbour v. Melendy & Russell, 88 Va. 595, 14 S. E. 326, and cases cited.

Several exceptions were taken to rulings of the trial court excluding the testimony of alleged experts who were offered to show how the injury done by the defendant to the plaintiffs might have been minimized in the past, or might be in the future. As to past injuries the evidence was properly excluded, as no one is under obligation to undertake to minimize a threatened or an intermittent voluntary trespass; The owner of property is not obliged to so use his own property that another may not injure it. If an injury is merely threatened, no action lies for the threat, and the property owner is under no obligation to attempt in advance to minimize the results of a wrong which may never be inflicted. If the injury is intermittent and recurrent, entire damages cannot be recovered in a single action, as the injury may never be repeated, and for that reason there is no duty resting upon the party injured to •attempt to minimize its consequences. B'ut where the injury is permanent in its character and continuous in its consequences, entire damages may be recovered in a single action, and the duty rests upon the injured party to minimize its consequences if it can be done at a moderate expense and by the exercise of ordinary care. Compare Norfolk County Water Co. v. Etheridge, 120 Va. 379, 91 S. E. 133; McHenry v. City of Parkersburg, 66 W. Va. 533, 66 S. E. 750, 29 L. R. A. (N. S.) 860. The owner of a dwelling is under no obligation to remove his furniture therefrom because some one has threatened to burn it, in order thereby to minimize the threatened loss, nor to provide wire screens for windows because through negligence of others a baseball occasionally breaks his glass. In each of these cases the trespasser must pay the entire proximate loss.

The railway company was no less a trespasser because it intended to exercise its right of -eminent domain than if it had entertained no such intention. Norfolk & Ocean View Ry. Co. v. Turnpike Co., 111 Va. 131, 68 S, E. 346, Ann. Cas. 1912 A, 239. Every time it diminshed the plaintiffs’ supply of water to their detriment it committed a new trespass, and while the nature of its pumping-station indicated that it would probably continue to trespass upon the plaintiffs’ property, the latter were under no obligation to presume that it would continue, to do so, without compensation, nor to undertake to minimize the results of a wrong that might terminate at any instant. They had no right to assume that the railroad company would continue to illegally inflict an injury upon them. Norfolk & Western R. Co. v. Allen, supra. Had they acted upon such assumption, ,and the company had ceased to take the water, all sums expended to minimize the loss would have been uselessly expended, without the right of recovery over against any one. The rule is otherwise, however, where the injury is complete and its consequences continuous. In such case the party injured must use reasonable care to protect his property from further injury, provided it can be done at moderate expense. Stonega Coal Co. v. Addington, 112 Va. 807, 73 S. E. 257, 37 L. R. A. (N. S.) 969. Thus if one should cut a hole in my roof thereby permitting the rain to come in, and I have knowledge of the fact; I must within a reasonable time have it repaired and thereby minimize the loss I would otherwise" sustain, else I cannot recover the resulting damage from the trespasser.

We deem it unnecessary to discuss the ruling of the court as to its effect on future damages, as, in our opinion, the case was proceeded with in the trial court "on the wrong theory as to the measure of damages in a case of this nature. In this aspect of the case, it stood in all essential particulars, so far as the measure of damages was concerned, as a proceeding to condemn the water for the use of the defendant. On the trial in the circuit court, the plaintiffs were permitted to offer evidence of the amount of horsepower lost, and to estimate the value of that horse-power at the mill by comparing the horse-power at another place, and under different conditions and then to calculate what sum put at interest at six per cent, would produce that income, and much more evidence of a purely speculative nature.

The plaintiffs filed with their testimony the following statement of their claim for future loss, if no change was made to obtain additional water power.

“Estimated for future loss if mill cannot be successfully changed:

Value of mill as going concern, with good wheel,

on basis of five years...................'$14,060.00

Additional Profits.

Loss of 2 1-2 h. p. Value of 1 h. p. 54c per day,

1 year $162.00, 2 1-2 h. p. per day for one year, 356.00

Sum necessary to provide $356 at 6%......... 5,933.33

$19,933.33

Value of mill at present..................... 5,000.00

Balance ..........................$14,933.33”

The plaintiffs thereupon claimed, as their damages on that account $14,933.33.

Just how that statement, was of value to the jury in aris not made so by the evidence of the witnesses, or the argument of counsel, but it need not be further considered. The jury in fact allowed for the future damages $5,933.33. This sum was the exact sum claimed by the plaintiffs as the value of 2.2 horse-power lost, but the price is fixed at 54 cents per day without any fixed data upon which to base it except the opinion of a witness who had no adequate informatioh on the subject. He testified to the. value of an electric horse-power furnished in the city of Lynchburg by the Lynchburg Light and Traction Co., but was not “able to say what is the value of horse-power at Prospect, at Mr. Allen's Mill,” but knew it could not be furnished at the Lynchburg price, because had tried it without success. The estimates of this witness, however, were purely speculative, based upon insufficient data, and their adoption by the jury necessarily resulted in a speculative verdict.

It is not claimed that the water sought to be condemned, in the instant case, is of any special value except as a motive power for the plaintiffs’ mill, or that the mill site, or any of the property affected, has any peculiar or prospective value other than its present use. All that the plaintiffs claim is that their mill is damaged by the diminution of the water supply by the acts of the defendant; that they have not the power they formerly had, and that the defendant should either cease to fake the water, or else make compensation therefor. This presents the ordinary case of a permanent injury by the defendant to the real estate of the plaintiffs. There are cases where the market value of property is not affected by the trespass complained of, or is even enhanced, and the owner is still entitled to recover (Virginian R. Co. v. London, 114 Va. 334, 76 S. E. 306), but this is not one of them. In the instant case, the measure of damages is the difference between the market value of the mill property before and after the injury. As the assessment is to be made now of the damages to flow from permission to take the water in the future, the evidence should be confined to the market value, at the present time, of the plaintiffs’ mill property with an undisturbed flow of water, and with the flow disturbed as proposed by the defendant. The difference between these sums represents the amount of damage to be sustained by the plaintiffs by the proposed' diminution of their water-supply by the defendant. This precise question has not been hitherto passed upon by this court, but the measure of damages stated is plainly right, conforms to our holdings on kindred questions and accords with the holdings in like cases in our sister States. In Norfolk County Water Co. v Etheridge, supra, it was held that “Where a dam causes permanent injury to another’s land, the measure of damages is the difference in the market value of the land with and without the dam, to be computed as of the time immediately before the dam was built and immediately after it was finished and filled with water.” See also, Richmond, etc., R. Co. v. Humphreys, 90 Va. 425, 18 S. E. 901; Richmond, etc., R. Co. v. Chamblin, 100 Va. 401, 41 S. E. 750; Hunter v. C. & O. Ry. Co., 107 Va. 158, 59 S. E. 415, 17 L. R. A. (N. S.) 124; Burger v. State Female Normal School, 114 Va. 491, 77 S. E. 489; Virginian Ry. Co. v. Hurt, 112 Va. 622, 72 S. E. 110; McHenry v. City of Parkersburg, supra: In. 8 Ruling Case Law, p. 481 it is said “the-proper measure of damages for permanent injury to real property is the diminution in the market value of the property,” and a large number of cases from other States is cited in support of the text. See also 13 Cyc. 150 and cases cited.

This objection to the measure of damages was not made in the trial court or in this court, but the point involved is fundamental. Whether or not the decree of the trial court should be reversed for the error mentioned need not be decided, as the decree has to be reversed on other grounds, but attention is called to it so that the error may not be repeated on any future trial.

There was no evidence before the jury as to the wealth of the defendant, or the value of its stock, but during the argument of the issues before the jury, counsel for the plaintiffs addressed the following remarks to the jury, which were duly excepted to as follows:

“Gentlemen of the jury: This most unusual case, a case without precedent in the annals of Virginia history, is one in which you may consider not only past and future damages, but exemplary damages, as a deterrent to this and other corporations not to do likewise.- In considering what would be a deterrent to a gigantic corporation of this kind, a corporation whose income is far greater than that of its creator, the State of Virginia, a corporation with $69,000,-000 of stock, and whose stock is selling on the market at around $145.00 a share, a great, rich corporation that disregards the law of God and man, and which, regardless of the decision of the Supreme Court of the Commonwealth of Virginia, the State that created this corporation, is going along and damaging these plaintiffs with impunity! I say, in order to make this corporation pay a penalty which would -be of such magnitude as to deter it from continuing this damage, and damaging future parties, you must exact a penalty of this gigantic corporation which will make it stop and think!”

And thereupon defendant objected as follows:

“Mr. Kirkpatrick.—If your Honor please, I object to the argument of counsel. Is this a case where exemplary or punitive damages may be allowed?”

Whereupon the court ruled as follows:

“The Court.—Where persons persist in a wrong the jury may take that into consideration in estimating the damages,” especially when the fact of the wrong has been judicially determined.

In a case in which exemplary or punitive damages are properly allowable, evidence of the wealth of the defendant may be introduced, and such evidence is a legitimate sub-' ject of proper comment, for what would be -punishment to a poor defendant would be no punishment at all to one of wealth and affluence (Singer Mfg. Co. v. Bryant 105 Va. 403, 420, 54 S. E. 320), but it is never permissible for counsel to go outside of the record and testify as to matters not given in evidence, nor, in any case, to make use of language calculated to inflame the minds of the jurors and induce a verdict not founded solely on the evidence adduced before them. So in this case, even if it were a proper case for punitive damages, the remarks of counsel are obnoxious to the rule we have stated.

' But we do not think this case is a proper one for the award of exemplary, or punitive damages. It will be observed that the judgment of this court was not certified to the circuit court until February, 1916, and that the second action was brought August 24, 1916. • The railroad company is a great public service corporation. Water for the conduct of its business is an absolute necessity. The location of the tank and pumping-station was selected -with a view to the conveyance of a proper supply for thé purpose. Whether or not an adequate supply could be obtained elsewhere and meet the necessities of the company does not appear from the record, but it is manifest from the quantity of water taken, and from other circumstances, that if a change was necessary the company should have had a reasonable time in which to ascertain where the new supply could be obtained, and to change its pumping-station and tank, upon making just compensation for the water taken. This was a matter that could not be settled at once, and it cannot be said the continued taking of water from Lockett’s creek until a new supply could be obtained and made available, or until condemnation proceedings could be had, was a willful defiance of the judgment of the courts. Certainly, the continued taking of the water up to the time that it was agreed that the matter in controversy should be settled in the chancery suit cannot be said to evince malice or wantonness on the part of the railroad company, or an intention to defy the law of the land, or to oppress the Allens. The evidence in the- case does not show tjiat the railroad company was actuated by malice, wantonness .or oppression, or that there was any fraud on its part, or that it was guilty of any gross negligence or recklessness, or that its action in continuing to take the water, after the order of this court had been certified to the circuit court until arrangements were made to settle the controversy, evinced any intention on the part of the railroad company to disregard the rights of the Allens, or to defy the law of the land. Unless one or the other of these situations existed, the Allens had no right to recover punitive damages. 12 Am. & Eng. Enc. of Law (2nd edition), 21, and cases cited. We do not think, therefore, that the Allens were entitled to recover punitive damages in this case (1) because the law and the facts do not warrant it, and (2) because it was not within the issues submitted to the jury.

This court has more than once reprobated in no uncertain terms the practice of injecting into arguments of counsel statements calculated to inflame the minds of jurors, and tending to produce verdicts as a result of prejudice rather than a calm consideration of the evidence. Every litigant, natural or artificial, is entitled to a fair and impartial trial, and there should be excluded from the tribunal which is to try the case, whether judge or jury, every thing that has no tendency to aid such tribunal in doing impartial justice between the litigants. There can be no difference of opinion on this subject. But, while assenting to this statement of the law, it is argued that the error of addressing improper remarks to the jury was harmless error, as there was ample evidence to sustain the verdict, and it does not appear that the jury found any punitive damages. The harm consisted in depriving the defendant of a fair and impartial tribunal to weigh and consider the evidence lawfully before it touching the actual damages sustained. There was no exact measure of damages in the instant case. The actual damages sustained and to be sustained could not be measured by any exact standard. They were matters which lay largely in the opinions of witnesses, and these opinions were based upon different data. There was a wide difference between the testimony on behalf of the plaintiffs and that on behalf of defendant. And even as to the plaintiffs’ testimony based upon the value of horse-power, in estimating future damages, the value of such horse-power is dependent upon the extent that it can be and is utilized. Horse-power without use is valueless. To the extent that the plaintiffs could not, from any cause, obtain grain to grind, or did not obtain it, the horse-power would be valueless unless it could be sold. Upon these questions there was sharp conflict of testimony, and the testimony of one of the plaintiffs was not altogether consistent with his testi-. mony on the former trial, nor was the value of such horsepower ascertained by any satisfactory evidence, and yet upon this issue the verdict was for the exact amount claimed by the plaintiffs. It cannot, therefore, be said that the error was harmless, even though the verdict awarded no punitive damages. On account of the improper remarks by counsel for the plaintiffs in addressing the jury, the verdict will be set aside.

. The other objections raised need not be considered, as the questions raised thereby are not likely to arise on another trial.

Reversed.