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Kelly. I cannot see that the defendant was prejudiced by this action, as the testimony of Given was given before the jury, and ample opportunity afforded to examine him.

The state also offered in evidence, in connection with the testimony of Jack Friend, a plot or diagram purporting to show the raft, river, and bank where the difficulty occurred. To this the defendant objected. The objection was overruled, and said plat or diagram was permitted to go to the jury as evidence. This is claimed to be error on the part of the court, but I cannot see that the prisoner was prejudiced by this action of the court.

It is also claimed that the court erred in overruling the motion of the prisoner to set aside the verdict and grant him a new trial, but, as this involves a discussion of the testimony, we decline to consider this assignment of error, as the case will be remanded. For the reasons above stated, the judgment complained of is reversed, the verdict set aside, and a new trial awarded.

BRANNON, J. (dissenting). I am incompetent to comprehend how it is error to give an instruction held sound law in State v. Cain, 20 W. Va. 681, and often since, when the theory presented by it is fairly a subject of inquiry by the jury, under the evidence. Instruction No. 1 states a general proposition of law. The evidence shows that the parties had a lawsuit, Dickey claiming something of Tanner, and angry at him; and Dickey made threats of bouncing a rock off Tanner's head. They met in the presence of Given and Friend, and quarreled,-Dickey commencing the quarrel,-and came to blows. Tanner was killed by Dickey with a blow of a rock on the head. It was a question for the jury whether that blow was given with or without provocation. Judge ENGLISH uses Given's evidence to show that Tanner struck Dickey in the back with a rock, and thus finds there was severe provocation, and says, therefore, an instruction presenting the question whether there was or was not provocation was improper; but, very strangely, Judge ENGLISH forgets altogether Friend's evidence. He shows no such provocation. He says that, when Tanner told Dickey he had once paid him $4 for nothing, Dickey called him a "God-damned liar," and drew his coat to fight. Given agrees with Dickey thus far. Friend says that they came to blows, when Tanner ran. Dickey followed him, open knife in hand, as Dickey admitted, and Friend saw no blow in the back from Tanner to Dickey. There was evidence to show that Given himself contradicted this blow in the back, by not mentioning it when narrating the occurrence, just afterwards, when he said both Tanner and Dickey threw rocks so nearly together that he could not tell which threw first. This was a different version. The state openly contested his credit before the jury. Thus, the conflicting ver

sions of the tragedy coming from Given and Friend, bearing on the alleged provocation from Tanner's striking Dickey in the back with a rock, were before the jury, and the credibility of the two men, and the question whether, from his threats, it was likely Dickey acted without provocation. The jury was bound to pass on this question. This was the point of debate between the state and the defendant. The instruction did not assume there was no provocation, but said to the jury, in general terms, that if there was no provocation, and death was inflicted with a dangerous weapon, it would be in law murder; and, logically, if there was such sufficient provocation, it would not be murder. It did not hint that in the judge's opinion there was no provocation, or very slight, but left it with the jury to say whether the facts shown by the evidence fit or suited the instruction. How could it mislead a jury of ordinary sense? This point was not seen by counsel. It seems to me hard to see. Again, as the jury ignored the charge of murder, what has this instruction to do with the case? It bore only on the murder feature. If error, it is harmless, and not cause for reversal.

With regard to instruction No. 6: Judge ENGLISH goes on the erroneous idea that Given's evidence is to be taken as conclusive to show an overt act in a blow in the back of Dickey given by Tanner. But was that blow given, was a question for the jury, under the conflicting versions of the occurrence as given by Friend and Given.

And how can Judge ENGLISH reverse the circuit judge for the evidence given by the prosecuting attorney? He said only that Dickey's counsel, in Dickey's presence, stated that Dickey hit Tanner with a rock, and Dickey remained silent. The evidence was admissible. But suppose it was not; how could it hurt Dickey, when he admitted the same thing on the witness stand? It was not questioned.

To overthrow verdicts and frustrate criminal justice on such light grounds seems to bring criminal procedure into odium and reproach, and increase grave crime. I cannot see my way to agree to this judgment, but, as three judges see it plainly, I may be dull and obtuse. It seems to me to be so plain that lawyers ought not to differ upon it.

(46 W. Va. 345)

WOOLDRIDGE v. COUGHLIN et al. (Supreme Court of Appeals of West Virginia. April 8, 1899.)

WAY OF NECESSITY-PRESCRIPTION. 1. A way of necessity exists where land granted is completely environed by land of the grantor, or partially by his land and the land of strangers. The law implies from these facts that a private right of way over the grantor's lands was granted to the grantee as appurtenant to the estate.

2. Use of a private way from one's land over land of another for 10 years with the acquiescence of that other will confer a right to such

way, but, if the landowner does not acquiesce therein, but denies the right of way, such use will not confer the right of way.

(Syllabus by the Court.)

Appeal from circuit court, Fayette county; J. M. McWhorter, Judge.

Suit by Thomas Wooldridge against Cornelius Coughlin and others. Decree for plaintiff, and defendants appeal. Affirmed.

A. D. Preston and J. W. Davis, for appellants. St. Clair, Walker & Summerfield, for appellee.

BRANNON, J. Wooldridge sued out an injunction in the circuit court of Fayette against Coughlin to enjoin Coughlin from obstructing and hindering Wooldridge in the use of a private way leading from land of Wooldridge, over land of Coughlin, to a public road, and, the injunction having been perpetuated, Coughlin appealed to this court. The facts of the case are that Cabell, being owner of a large tract of land in Fayette and Greenbrier counties bordering on the east side of a public highway called the "Old State Road," on September 2, 1871, conveyed out of said tract a tract containing 1,460 acres, no part of which touched the old state road, thus leaving Cabell yet owner of the land intervening between the land conveyed to Hurley and the old state road. On May 22, 1873, Cabell conveyed to Coughlin two tracts, being parts of said large tract, bordering on the old state road, and lying between it and the Hurley land, and cutting the Hurley land off from said public road. On June 27, 1882, Hurley conveyed to Wooldridge 105 acres out of the 1,460 acres, said 105 acres lying back of and adjoining the Coughlin land. Thus Wooldridge and Coughlin derived title from a common source (Cabell), the Wooldridge title emanating from Cabell first in time. When the 1,460-acre tract was conveyed by Cabell to Hurley, the land was in a state of nature, and, so far as appears, that part of it conveyed by Hurley to Wooldridge remained in a state of nature until 1882, when Wooldridge moved upon it, made large improvements, built a dwelling upon it, and resided upon it from 1882 until he brought this suit. Wooldridge claims a way of necessity. I think there can be no doubt that, the instant Cabell conveyed to Hurley, Hurley had, under the law, a way of necessity to the old state road, because between Hurley's land and that road Cabell owned the land, and on the other side, back of the Hurley land, rises a high mountain, and, except the land then yet owned by Cabell, the Hurley land was cut off from access to the outer world by lands of other parties. The Wooldridge land has no access to a public road, no outlet to court house, church, mill, school, or other public places, except over the Coughlin land, because a high mountain rises on the other side, and land of another party (Brown) cuts it off from outlet to the world. It seems that Wooldridge can get out, and does get out oc

casionally, to a road in process of construction, called the "Summers County Road"; but it seems that to do so he has to go up the mountain by a steep grade, and pass through land of not only Hurley, who would be under obligations to concede Wooldridge a way of necessity, but also Brown, a third party, who would not be under such obligations; and the said Summers county road is incomplete, ending in the woods, without connecting with any public road. Thus this outlet cannot be said to dispense with the way of necessity vested in Wooldridge existing by reason of the conveyance by Cabell to Hurley, and the necessity of a way over Cabell's remaining land in favor of Hurley. This right of way was appurtenant to Hurley's estate in the land, if it existed, and is appurtenant to Wooldridge's estate in his land as an alienee of Hurley. I think such way of necessity exists. "A way of necessity exists where the land granted is completely environed by land of the grantor or partially by his land and the land of strangers. The law implies from these facts that a right of way over the grantor's land was granted to the grantee as appurtenant to the estate." Tied. Real Prop. § 609; 19 Am. & Eng. Enc. Law, 96; Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632; Boyd v. Woolwine, 40 W. Va. 282, 21 S. E. 1020. But it is said that, even if this way did once exist, it was lost by the statute of limitations, because it was not used from its birth on the conveyance from Cabell to Hurley, September 2, 1871, until after June 27, 1882, when Wooldridge moved upon the land, a period of more than 10 years; and it is claimed that this period barred the easement, as Coughlin was in actual possession of his land during that period, and the right of way was not exercised. It seems to me that mere nonuser of a way appurtenant to wild land would not destroy the right of way. The fact that Coughlin had possession of his land is not a material element, and would not affect the right of way, as Coughlin's possession was a matter of course, and it could co-exist with right of way, and would not be in antagonism per se with that right of way. In almost every case of conceded right of way, whether by grant or necessity, there is actual possession of the land subject to such right of way. Arnold v. Stevens, 35 Am. Dec. 305; Gray v. Bartlett, 32 Am. Dec. 208, note. The statute limiting actions for recovery of actual possession of land does not, in terms, apply to incorporeal hereditaments, such as mere easements. If the owner of the servient land deny the easement, and his denial is known to the owner of the dominant land, and there were nonuser thereafter of the way for the statutory period of 10 years, it would defeat the right of way; but I do not see that such private right of way, once brought into being, could be defeated by simple nonuser. Warren v. Syme, 7 W. Va. 474 (Syl., point 15); 1 Am. & Eng. Enc. Law (2d Ed.) 875; Ford v. Harris (Ga.) 22 S. E. 144;

Washb. Easem. 551. This would affirm the decree.

But another interesting question is discussed. Wooldridge claims that, even if his right of way were lost by limitation, he subsequently acquired a right of way by prescription. Prescription properly applies only to incorporeal rights, and the statute of limitations to corporeal property. Jones, Easem. § 161. Prescription presumes, as defined at common law, that a grant was once made tar back in time. In the past the length of time of user of the easement must have been so long that evidence of its commencement has become lost in its lapse. It must have been from a time "whereof the memory of man runneth not to the contrary." But that is all changed now; for, if there has been such actual use of the easement for the time fixed by statute for the recovery of corporeal property, that statute is applied by analogy, and the right becomes fixed and vested. However, between the old and new rules of prescription there is an important distinction. The flight of the long time requisite to vest the right under the old law afforded a conclusive presumption that there had been an express grant of the easement, its evidence lost by the tooth of time, and no proof that it never existed could be heard; whereas, under the new rule user for the statutory period raises only a prima facie presumption of a grant, which may be repelled. This distinc

tion is important in this case. To establish a right of way under the modern law, it must appear that it has been exercised for the statutory period, with the acquiescence of the owner over whose land the way is claimed. True, such user, without more, is taken to be with his acquiescence and knowledge, and prima facie gives the right; but if it appear that the user is against his protest, and that he denied the right, the right cannot become vested from time of user. Field v. Brown, 24 Grat. 74; Nichols v. Aylor, 7 Leigh, 546; Washb. Easem. 86, 111. Coughlin all along and frequently, as Wooldridge knew, denied the right, obstructed the way by tearing up a bridge over a stream on the line of the way. and serving written notice on Wooldridge to abstain from the use of the way.

This repels a way by prescription.

1 Am. & Eng. Enc. Law (2d Ed.) 875; Washb. Easem. 112. So, if Wooldridge had not a right of way as an implied grant by reason of the deed from Cabell to Hurley, none could be based on prescription; but by reason of such way of necessity we affirm the decree.

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a change of the grade in front of it, the defendant may show, under the general issue, that the plaintiff agreed, at the time the grade was being changed, that, if defendant laid a sewer through his lot to a point indicated by him, he would claim no damage by reason of such change, and may also show that said sewer was constructed in accordance with the agreement, and accepted by the plaintiff.

2. In an action of trespass on the case to recover damage of the character asserted in this case, the defendant may give in evidence, under the general issue, a release, or accord and satisfaction, or whatever would, in equity and good conscience, according to the existing circumstances, preclude the plaintiff from recovering, as any matters which operate a discharge of the cause of action or any justification or excuse. By this plea, all the material averments of the declaration are put in issue.

(Syllabus by the Court.)

Error to circuit court, Marion county; W. S. Haymond, Special Judge.

Action by William Ridgeley against the town of West Fairmont. Judgment for plaintiff. Defendant brings error. Reversed.

E. M. Showalter, for plaintiff in error. W. S. Meredith and F. T. Martin, for defendant in error.

ENGLISH, J. This was an action of trespass on the case brought by William Ridgeley against West Fairmont, a municipal corpora tion, in the circuit court of Marion county The facts upon which the suit is predicated as appears from the pleadings, are that the plaintiff was the owner of about one acre of land, except the coal underlying the same which fronted on the public highway, known, in 1892, as the "Fairmont and Weston Turnpike," on which was situated a two-story frame dwelling house, and a two-story frame store house and dwelling house jointly, both of which buildings stood near said turnpike. Subsequently plaintiff erected on said land another two-story frame building used for a dwelling and store house combined. Said buildings were erected and used in conformity with the grade of said Fairmont and Weston turnpike, as it existed at the time they were built, and in December, 1892, a part of the territory of Fairmont district was incorporated, and became a municipal corporation, under the name of "West Fairmont"; and in 1892 said corporation established all that part of the Fairmont and Weston turnpike lying within its limits, including that part adjacent to said land, as one of its streets, and called it "Main Street," or "Locust Avenue," and in September, 1894, changed the grade and raised the surface of said street in front of, and adjacent to, said plaintiff's property, by filling the same with dirt, gravel, stone, etc., and without his consent, and against his protestations, raised the grade 56 inches higher than it was when plaintiff became the owner of said property and the houses thereon; and the plaintiff claims that he is damaged by the drainage of water on his lot caused by the change of grade, and that he is thereby deprived of all safe, commodious, and convenient egress and ingress from and

to said land, and the houses thereon; and, by reason of said wrongs and injuries, he claimed $5,000 damages. On the 28th of November, 1896, the defendant demurred to the plaintiff's declaration, which demurrer was overruled. The defendant pleaded not guilty, and on the 16th of March, 1897, the case was submitted to a jury, and, after several adjournments, they returned a verdict for the plaintiff for $500. The defendant moved the court to set aside the verdict, and grant it a new trial, on the ground that the verdict was contrary to the evidence and the law, and because the court gave to the jury certain instructions at the instance of the plaintiff, which were objected to by the defendant, and refused certain instructions asked for by the defendant, and because the court excluded certain evidence offered by the defendant, which, if admitted, would have produced a different verdict. This motion was overruled, the defendant excepted, and judgment was rendered upon the verdict. The defendant took several bills of exception, and obtained this writ of error.

It is claimed by counsel for the plaintiff in error that the court erred in overruling the demurrer interposed by the defendant, insisting in his brief that the action, being, in substance, ex contractu, it should have been brought in assumpsit. The damage complained of in this case, however, was indirect, and, as I understand it, trespass on the case, in an action of this character, is not only proper, but the one uniformly resorted to, in cases of the kind. See Hutchinson v. City of Parkersburg, 25 W. Va. 226; Johnson v. Parkersburg, 16 W. Va. 402; Blair v. City of Charleston, 43 W. Va. 62, 26 S. E. 341,-all cases similar, in many respects, to the one at bar, in which the action was trespass on the case. The gravamen of the plaintiff's declaration appears to be that, without the consent of the plaintiff, the defendant has raised the grade of the street in front of his property, so that surface water is thrown upon plaintiff's lot, which, with the buildings on it, is thereby damaged without the plaintiff's consent, and he is thereby deprived of all safe, commodious, convenient, and proper ingress and egress to and from said land. Now, while it is true that, where the defendant seeks to confess and avoid in trespass, a special plea is required, in the case at bar the plaintiff avers in his declaration that the grade was changed in front of his property, and the injury complained of resulted therefrom, without his consent, and under the general issue, surely, the defendant might be permitted to show that the grade was raised with his consent, especially when he was paid a consideration for it. As to the evidence which may be given under the general issue in an action on the case, Hogg, in his valuable work on Pleading and Forms (184), says: "The general issue, as we have seen, in actions ex delicto, is that of not guilty;" giving the form of the plea, and adding: "Under which may be given in

evidence a former recovery, release or accord and satisfaction, or whatever would, in equity and good conscience, according to the existing circumstances, preclude the plaintiff from recovering, as any matters which operate a discharge of the cause of action, or any justification or excuse. By this plea, all the material averments of the declaration are put in issue,"-citing 1 Chit. Pl. 490. The same strictness in pleading does not obtain in trespass on the case as in trespass. The law is stated thus in 18 Am. & Eng. Enc. Law, 534: "At common law, the general issue not guilty is in form a traverse or denial of the facts which form the subject of complaint. On principle, the evidence admissible under it should be confined to matters of defense, which rest in denial. But, by gradual relaxation of the practice similar to that which occurred in assumpsit, evidence came to be received, not only of matters in denial, but of defenses by way of confession and avoidance. There is therefore an essential difference between actions of trespass and on the case. The former are stricti juris, and accordingly a former recovery, release, or satisfaction cannot be given in evidence under the general issue, but must be specially pleaded. But the latter are founded on the mere justice and conscience of the plaintiff's case, and are in the nature of a bill in equity, and in effect are so, and therefore a former recovery, release, or satisfaction need not be pleaded, but may be given in evidence under the general issue. On the general issue, the plaintiff is put to the proof of his whole case, and the defendant may give in evidence any justification or excuse of it. Thus, a license which in trespass must be pleaded may in case be given in evidence under 'not guilty.'" To the same effect, see Andrew, Steph. Pl. 238, § 118; also opinion of Lord Mansfield in Bird v. Randall, 3 Burrows, 1353, in which he asserts the doctrine above announced, and draws the distinction between trespass and trespass on the case. See, also, 1 Bart. Law Prac. 503; Greenwalt v. Horner, 6 Serg. & R. 77. So, also, in Hills v. Railroad Co., 18 N. H. 179, it is held: "In an action on the case for an injury to the plaintiff's land, it is not necessary to plead specially. Evidence that the acts complained of were done by the permission of the plaintiff is admissible under the general issue, and a fortiori that they were done at the request and by the direction of the plaintiff." Authorities might be multiplied in support of this proposition, but these are sufficient to show the trend and weight of authority on the question.

Bill of exceptions No. 10, taken by defendant, shows that he offered to prove by several witnesses that, at the time the improvement was made in front of this property, the plaintiff agreed that, if they would put in tiling from the end of the culvert on the side of the street nearest his property to a point near his dwelling house, which was said to contain 14 rooms, he would take that

in consideration of all damages by said improvement to his property, and that defendant put in said tiling according to contract; which evidence was objected to by the plaintiff, and excluded by the court. It is presumed this ruling of the court was based on the supposition that this evidence was not admissible under the general issue. Counsel for the defendant in error insist that it would have been error to permit this evidence to go to the jury, because there was no such defense set up by special plea, and it could not be shown under the general issue. We have, however, discussed this point above, and hold that the evidence was admissible under the general issue, and the court erred in excluding It, to the prejudice of the defendant.

Bill of exceptions No. 7 also shows that the defendant asked a witness to state what, if anything, the plaintiff said, at the time the work was being done, about the town putting a sewer through his property as a compensation for damages. This question was objected to by plaintiff's counsel, and excluded by the court; which ruling was erroneous, for the reasons above stated. The case of Pifer v. Brown, 43 W. Va. 412, 27 S. E. 399, relied on by counsel for defendant in error, does not apply to this case, as the question of license does not arise in it.

It appears from the testimony that one of the witnesses by whom the defendant offered to prove that the plaintiff agreed that, if the town would put in certain tiling from the end of the culvert to a point near his dwelling, he would take that in consideration of all damages, was mayor of the town when the grade was changed, another was a councilman, and a third the civil engineer who changed the grade; and if defendant had been allowed to show, as we think he had a right to do, that the plaintiff agreed in consideration of said sewer being put down as indicated by him, which was really done, he would claim no damage, the result of the case might have been quite different.

The plaintiff asked the court to instruct the jury that "the opinions of witnesses as to the value of property before and after a change in a street grade are admissible in evidence in actions against municipal corporations for damages flowing from such change; and the jury, in considering such opinions, should also consider the personal interests and prejudices of the witnesses, the facts and circumstances upon which they base their opinion, in order that the jury may determine for themselves whether or not the conclusions and the opinions of the witnesses are correct." This instruction should have been rejected, because it assumes that the witnesses referred to have personal interests and prejudices, which assumption is not supported by the testimony.

The defendant, by its counsel, asked the court to instruct the jury that the general benefits arising from an improvement like the one mentioned,-the grading and paving

of a public road or street,-is that benefit every one may enjoy,-the right to use or pass over the same,-and the enhancement in value along and near such improvement is to be considered as a special benefit to the owners of said property. This instruction the court refused to give,-why, does not appear. It accords with the ruling in the case of Blair v. City of Charleston, 43 W. Va. 62, 26 S. E 341, in which it was held: "The question is one of damage, less special, but not less general, benefit;" so that, in order that the jury might properly consider the question of damage to this property, it was proper that the court should instruct them as to the difference between general and special benefits, and the instruction should have been given.

The court also erred in allowing the witness Fourtney to fix the damage to the plaintiff's property by reason of the change of grade at $1,000, based on the use of said property for a particular purpose, when the true rule of ascertaining the damage in a case of this character is stated in Blair v. City of Charleston, supra.

My conclusion is that the circuit court erred to the prejudice of the defendant in the rulings above indicated. The judgment complained of is reversed, the verdict set aside, and a new trial awarded.

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An attachment creditor has his suit referred to a commissioner to ascertain the real estate of the attachment debtor, and the liens against the same, without first making the known lien creditors and the trustee holding the legal title parties thereto. On the coming in of the commissioner's report the court consolidates such attachment suit with another suit, therein pending for the purpose of subjecting the debtor's real estate to the payment of the liens thereon, in which there had been no reference, and then, over the objection of the parties plaintiff and defendant to the latter suit, proceeds to render a final decree on such commissioner's report as to both causes. This is manifest error.

(Syllabus by the Court.)

Appeal from circuit court, Tucker county; J. H. Holt, Judge.

Suit by O. S. Wilson & Bro. against J. S. Carrico and others. Decree for defendants, and plaintiffs appeal. Reversed.

C. O. Strieby and J. P. Scott, for appellants. Cunningham & Stallings and W. H. Kelley, for appellees.

DENT, P. For March rules, 1897, of the circuit court of Tucker, O. S. Wilson & Bro. brought a general lien creditors' suit against J. S. Carrico and others to ascertain the real estate of defendant Carrico, and subject it to the payment of the liens thereon. At April rules the bill was filed. At June term, 1897,

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