Volume 129 — Virginia Reports

From the decree directing payment of surplus after sale of debtor’s property to his trustee in bankruptcy, appellant appeals.

<p>Appeal from a decree of the Circuit Court of Louisa county. Decree for complainants. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Prince Edward county in a proceeding to determine boundaries. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Louisa county. Decree for defendant. Complainant appeals.</p>

<p>Error to a judgment of the Circuit Court of Appomattox County in a proceeding by motion for a judgment' for damages. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Corporation Court of the City of Lynchburg. Decree for defendant. Commonwealth appeals.</p>

<p>Error to a judgment of the Hustings Court of the City of Richmond, on an application to correct an erroneous assessment. Judgment for plaintiff. Commonwealth assigns error.</p>

<p>Error to a judgment of the Circuit Court of Northampton County, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendants assign error.</p>

<p>Error to a judgment of the Circuit Court of Alexandria County in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to judgment of the Circuit Court of Prince George County in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Lunenburg county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendants assign error.</p>

<p>Error to a judgment of the Circuit Court of Prince George County in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of the citv of Richmond. Decree for petitioner. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Prince George county in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Halifax county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of Newport News in an action of assumpsit. Judgment for plaintiffs. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Gloucester county in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of Danville in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Orange county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>1. Waters 'and Watercourses. — Flooding Lamd — Railroad Embankment. — A railroad company, in double tracking its road, raised its grade 16 or 18 feet, causing great quantities of water to run down from the sides of the fill upon the property, of an adjoining landowner, the water, in part, being conducted through a drain pipe placed on the embankment and discharged on the land of the landowner.</p> <p>. Held: That the landowner was entitled to recover for the damages done to her property by collecting and discharging the water thereon.</p> <p>2. Eminent Domain. — Damaging Property — Smoke and Cinders.— The casting of great quantities of smoke, cinders, dust, and dirt by a railroad company upon the store and dwelling of an adjoining owner of land is a'damage, within the meaning of the Constitution of 1902, which forbids the taking or damaging of private property for a public use without making just compensation therefor.</p> <p>3. Eminent Domain. — Damaging Property — Smoke and Cinders• — ■ Case at Bar. — A railroad company by raising the grade of its tracks discharged great quantities of smoke, cinders, etc., upon the property of an adjoining landowner. At the time the tracks were raised additional land was condemned by the company alongside its original right of way, and upon this additional strip it placed one of its main line tracks and sidings.</p> <p>Held:- That there could be no recovery by the adjoining landowner for the additional amount of smoke and cinders discharged from the original iine, but that for smoke and cinders discharged from the new location there could be a recovery by the landowner.</p> <p>4. Eminent Domain. — Damaging Property — Smoke and Gindeps— Case at Bar. — Where a railroad company in double tracking its line raised its track and condemned an additional strip of land upon which it placed one of its main lines and sidings, an adjoining landowner is entitled to damages for smoke, cinders, and dirt from engines and trains operating on the tracks on the new location, although that location was further from the plaintiff’s property than the old,- and the damage from the new location was less than that from the old. There was a new location and a new construction thereon, and the company had no right to impose any damage from the new location.</p> <p>5. Eminent Domain. — Damaging Property — Smoke and Cinders— Joint Tort — Additional Servitude — Case at Bar. — In the case of a joint tort by two or more, each one is guilty of some part of the tort, and the law will not attempt to apportion it, and so each is held liable for the whole. In the case of an additional servitude, the addition is on the same land as the original. But in the instant case there was a new damage from a new location of some of its tracks by the railroad company, and also an additional damage from the old location, both done by the railroad. This was neither a, joint tort nor an additional servitude, and the damage may be apportioned between the new location and the old.</p> <p>6. Eminent Domain. — Povoer of Legislature- — Constitutional Restriction. — The power of eminent domain and the manner of its exercise resides in the legislature, except so far as it may be restrained by the Constitution. Since the adoption of the Constitution of 1902, providing that the legislature shall not enact any law whereby private property is taken without just compensation, the legislature has not enacted and cannot enact any law in violation of that constitutional provision. It is immaterial whether a railroad company acts in its public or private capacity. In neither aspect can it take or damage private property for its use without making just compensation therefor.</p> <p>7. Eminent Domain. — Person Not a Party to the Proceeding— Right of Action. — If the owner of private property, which is damaged, but not taken, is not a party to the proceeding to condemn the property of another, and his rights have not been passed upon, he may maintain an action at law to recover just compensation. The right to recover such compensation is not restricted to the proceeding in which the right of eminent domain is exercised.</p> <p>8. Limitation op Actions. — Railroads—Cinders and Smoke. — Damage to an adjoining landowner caused by cinders and smoke from a railroad track cast upon his land is permanent and continuous, and entire damages are recoverable in a single action, and the limitation in such case is five years under Code of 1919, section 5818.</p> <p>9. Eminent Domain. — Damages—Evidence.—In an action by an adjoining landowner for damages occasioned by the raising of the roadbed of a railroad, evidence as to the difference' be- ’ tween the market value of plaintiff’s property before and after the erection of the fill was inadmissible, where the diminution in market value resulted from several causes, for one of which the railroad was not answerable in damages.</p> <p>10. Eminent Domain. — Damages—Evidence.—In an action by an adjoining landowner for damages occasioned by the raising of the roadbed of a railroad, evidence of the damage to be apprehended from trains running off the embankment, and injuring plaintiff’s property and endangering the lives of the occupants of the buildings thereon, is not admissible. Such damage, if not purely speculative, was covered by the original condemnation of the railroad’s right of way.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk in a proceeding by motion for a judgment for damages. Judgment for plaintiffs. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Hustings Court, Part II, of the city of Richmond, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond. Decree for plaintiff. Defendant appeals.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to judgments of the Circuit Court of the city of Suffolk, in actions of trespass on the case. Judgments for plaintiff. Defendants assign error.</p>

<p>Error to a judgment of the Circuit Court of Nansemond ■county, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond in a proceeding by motion for a judgment for damages. Judgment for plaintiffs. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Brunswick county. Decree for complainant. Defendant appeals.</p>

<p>Appeal from an order of the Corporation Commission.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond on a petition to condemn land. Judgment for defendants. Petitioner assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of Williamsburg and county of James City, in an action of assumpsit. Judgment for defendant. Commonwealth assigns error.</p>

a judgment of the Circuit Court of Northampton county in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

<p>Error to a judgment of the Circuit Court of York county in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Nottoway county. Decree for complainant. Defendant appeals.</p>

<p>Error to orders of the Law and Equity Court of the "city of Richmond granting petitions for writs of mandamus.</p>

<p>Questions certified from the Industrial Commission, pursuant to section 61 of the workmen’s compensation act (Acts 1918, p. 637). Claimant denied compensation.</p>

<p>Error to a judgment of the Circuit Court of Nottoway county in an action of assumpsit. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Norfolk county, in proceedings under the workmen’s compensation act. Judgment for claimants. Defendant assigns error.</p>

<p>Error to a judgment of the Hustings Court of the city of Petersburg, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Corporation Court of the city of Newport News, in proceedings under workmen’s compensation act. Judgment for defendant. Claimant assigns error.</p>

<p>Error to a judgment of the Corporation Court of the city of Lynchburg in a proceeding by motion for a judgment for damages. • Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Southampton county. Decree for defendants. Complainant appeals.</p>

<p>Appeal from a decree of the Circuit Court of Orange county. Decree for defendant. Complainant appeals.</p>

<p>Error to a, judgment of the Circuit Court of the city of Norfolk, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Hustings Court, Part II, of the city of Richmond, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond imposing a fine on appellant for discontinuing service on one of its routes in the city of Richmond.</p>

<p>Appeal from a decree of the Circuit Court of Loudoun county. Decree for defendant. Complainant appeals.</p>

<p>Error to a judgment of the Circuit Court of Accomac county, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to an order of the Circuit Court of Louisa county.</p>

<p>. Error to a judgment of the Corporation Court of the city of Norfolk, in an action of unlawful detainer. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city "of Newport News, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Sussex county. Decree for complainants. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Northampton county in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Corporation Court of the city of Newport News.</p>

<p>Error to a judgment of the Circuit Court of Loudoun county.</p>

<p>Error to a judgment of the Circuit Court of Prince William county.</p>

<p>Error to a judgment of the Circuit Court of Dickenson county.</p>

<p>Error to a judgment of the Hustings Court of-, the city of Portsmouth. ' ■</p>

<p>Error to a judgment of the Circuit Court of Orange county.</p>

<p>Error to a judgment of the Circuit Court of York county.</p>

<p>Error to a judgment of the Corporation Court of the city of Hopewell.</p>