Volume 92 — West Virginia Reports

<p>1. Easements — Open, Continuous, Notorious Use of Private Way Over Tract of Another, Unobjected To, Presumptively Adverse.</p> <p>Open, continuous and notorious use by an owner of land, of a private way over an adjoining tract owned by another person, known, acquiesced in, unobjected to and unprotested by the latter, is presumptively adverse to him and enjoyed under a dona fide claim of right, (p. 163).</p> <p>2. Same — Adverse User of Private Way for Ten Years Ripens Into Easement by Prescription.</p> <p>Such use for a period of ten years, in the absence of proof of any circumstance altering its character, ripens into perfect title to an easement over the adjoining or neighboring land, by prescription, (p. 163).</p> <p>3. Same — Use of Open Way in Common With Owner of Land Where Located and the Public Presumptively Permissive When Not Exercised Under Exclusive Right.</p> <p>Use of an open way in common with the owner of the land on which ft is and the public in general, is presumptively permissive and not exercised under a claim of right, in the absence of proof of some act on the part of the person so using it; or circumstance under which he used i<t, showing a claim of exclusive or peculiar right in him, distinct from that of the general public, (p. 163).</p> <p>4. Same — Use of Open Way, Commenced in Exclusive and Adverse Manner, Does Not Lose Adverse Character by Reason of Subsequent Joinder of Public.</p> <p>If user of such a way, commenced in such manner as to make it exclusive, peculiar and adverse, is afterward enjoyed in common’ with the public, it does not lose its a'dverse character by reason of the joinder of the public therein, (.p. 163).</p> <p>5. Same — Road, at Inception of Use Leading Only to 'Premises of Person Using it, Sufficient to Prove Exclusive Right.</p> <p>If a roa’d, at the inception of its use, led only to the premises of the person using it, that circumstance is sufficient to prove his use thereof under a claim of exclusive, peculiar and distinct right, in the absence of proof of the contrary thereof, (p. 163).</p>

<p>1. Equity — Bilí Stating Two or More Equitable Causes of Action Demurrable for Multifarbusness.</p> <p>An objection to a bill in equiti stating two or more equitable causes of action, having no- lubstantial connection in the legal sense of the terms, promily made by demurrer, on the specific ground of multifariousress, should be sustained, (p. -'171).</p> <p>2. Same. — Bill Seelcing Partition and Enforcement of Liens ■ Multifarious.</p> <p>A bill seelcing partition of red estate and enforcement of alleged liens in favor of the pldntiff, upon the interests of some of his cotenants, sets up two.separate and distinct causes ■of action and subjects it to the ri}e against multifariousness, which will be enforced in the absnce of waiver by delay in the interposition of the objection and every other circumstance vesting judicial discretion as to application of that rule. (p. 170).</p>

<p>Waters and Water 'Courses — -Declaration That Water is Artificially Collected on Lands of Defendant and Discharged on Lands of Plaintiff to His Damage States Cause of Action.</p> <p>A declaration which in substance states that defendant has, in improving its lot of land, constructed an embankment thereon by which surface water is collected in a volume into a channel which 'discharges such surface water over said embankment and upon an adjoining lot belonging to and occupied by plaintiff, to his great damage, states a cause of action, and a demurrer thereto is properly overruled.</p>

<p>1. Trusts — Express Trust Held Created in Favor of Wife for One-half of Net Profits Derived on Resale of Wife’s Land Sold at Trustee’s Sale.</p> <p>A proposition is made in writing to tlie husband proposing the purchase of his wife’s separate real estate at a trustee’s sale, then about to be made, immediately following personal negotiations with the wife leading to the propostion in writing, wherein proponent agrees to buy the land at the trustee’s sale, and rent the same to the husband, and when the land should be resold by him to' divide equally the profits with the husban'd; which proposition is accepted by husband and wife, and in pursuance thereof the land is bought In by .the proponent at the trustee’s sale and the deed made to him. An express trust is thereby created in favor of the wife for one half of the net profits derived from a subsequent sale of the land. (p. 397).</p> <p>2. Same — Statute of Frauds Not Applicable to Creation of Express Trust as Basis of Equitable Interest in Real Estate by Parol Agreement.</p> <p>The statute of frauds does not apply ito an express trust as the basis of an equitable interest in real estate, (p. 397).</p> <p>3. Limitation of Actions — Trusts—Laches Not Imputed to Beneficiary of Express Trust Until Trustee Repudiates Trust to Beneficiary’s Knowledge; Limitation as Against Such</p> <p> Beneficiary Run From Repudiation of Trust and Notice to Him,. </p> <p>Where there is an express trust ordinarily laches cannot be imputed to the beneficiary until the trustee repudiates the trust, and such repudiation is communicated to the beneficiary. Nor will the statute of limitations begin to run until such repudiation and notice occurs, (p. 398).</p> <p>4. Equity — Will Apply Statute of Limitations to Claims, Where There is Concurrent Jurisdiction in Law and Equity.</p> <p>Where there is concurrent jurisdiction in law and equity for the assertion of claims, equity will apply the statute of limitations as a bar to' such claims, following the law, and will recognize and apply exceptions to the running of the statute, (p. 398).</p> <p>5. Limitation of Actions — •Limitations as to> Personal Actions Held Applicable to Personal Actions of Married Woman Affecting Ser Separate Personal Property. '</p> <p>The limitation of time for bringing personal actions prescribed in chap. 104, Code, applies to personal actions of a married woman which affect her sole and separate personal property; and sec. 16 of said chapter does not except her from the operation thereof, (p. 402).</p> <p>6. Same — Action by Beneficiary of Express Trust Against Trustee, who Repudiated Trust, to be Brought Within Ten Years From Date of Repudiation.</p> <p>Where, under the’ terms of the express trust set out in the first point of the syllabus, the surface, coal, an'd all but 1/16 of the royalty of the oil and gas, have been sold and conveyed, at different times, by the holder of the legal title, and he refuses to account to the beneficiary for one half of the net profits, repudiates the trust and denies liability, the period of limitation in which the beneficiary can sue is 10 years from the date of such repudiation and denial, (ip. 408).</p> <p>7. Perpetuities' — Agreement by Purchaser at Trustee’s Sale to Divide Profits on Resale With Owner Not Void, as Against Rule Against Perpetuities.</p> <p>The contract set out in the first point of the syllabus is not void and unenforceable as. violating the rule against perpetuities, (p. 409).</p>

<p>1. Fraud — Evidence of Similar Representation to Others Admissible.</p> <p>Evidence of similar representations, made to others, hy one soliciting subscriptions to the capital stock of a corporation, to induce purchases of- such property, are admissible in a suit for damages by one who purchases stock on the faith of fraudulent representations, not as evidence of the statements made to the plaintiff ita such suit, but as showing the inclination of mind of the party charged with making the representations on the subject, (p. 414).</p> <p>2. Same — False Representations Without Knowledge Actionable.</p> <p>One who represents that a certain condition exists with the expectation that another will act thereon, when in fact he has no knowledge in regard thereto, will be as liable to another who deals with him upon the basis of such representation, should it turn out to be false, as though he knew of the falsity •thereof at the time it was made. (p. 415).</p> <p>3. Same — False Statements as to Corporate Property to Induce Subscription to> Stock Actionable.</p> <p>An expression of opinion upon the part of one seeking to sell stock in a corporation as to the future prospects of the ■ corporation, or as to the value of its assets, will not ordinarily be the basis of an action for damages for fraud and deceit, should these expressions be not thereafter realized; but statements made as a basis for securing such subscriptions to the capital, stock, that the corporation owns in fact certain property, and in the case of coal mines, that the veins of coal are of a certain thickness, and that some of them have been opened up and the appearance thereof thus shown, and that the coal therein is perfectly clean, are not expressions of opinion, and should such statements turn out to be in fact false they will form the basis of an action for damages by one. who makes a subscription to the capital stock of such corporation upon the faith thereof, (p. 416).</p> <p>4. Same — Remedies Available; Subscriber fo Stock Held Not Estopped to Sue.</p> <p>One who' subscribes to the capital stock of a corporation upon the faith of representations made to him by a promoter of such corporation may, if sai'd representations prove to be false, affirm the contract of subscription and sue for the resulting damage, or he may repudiate the contract, deliver back the stock received by him, and maintain a suit to’ recover the money, paid by him therefor. In case he affirms'the contract, he will not be estopped to sue for 'damages caused by t'he false representations because he participated in meetings of the stockholders of the corporation, (p. 418).</p>

• Error to Circuit Court, Kanawha County. Action by -the Dunbar Tire & Rubber Company against R. W. Crissey and another. To review judgment for plaintiff notwithstanding a verdict for defendants, the defendants bring error.

<p>1. Municipal Corporations — Rule as to Liability for Unlawful Acts of Officers and Agents Stated.</p> <p>As a general rule a public corporation is not responsible for the injurious consequences of the unlawful acts of its officers and agents, though done colore officii, but when such corporation expressly authorizes such an act or, when done, adopts and ratifies it, and retains and enjoys the benefits arising therefrom, it is liable in damages, (p. 4281.</p> <p>2. Counties' — Liable for Reasonable Value of Goal Removed by Agents Under Authority of County Court Without Authority of Owner.</p> <p>A county court which expressly authorizes and directs its agents and servants to enter upon the lands, of another and extract the coal therefrom for the purpose of using the same in the performance of a -work which said county court may lawfully and of right perform, knowing, or under such a state ■of facts as that it must have known, that it had no right or authority to remove such coal, will be liable to the owner of the land for the reasonable value of the coal so taken at the time of its removal from the premises of such owner, without any reduction of such value because of the expense of mining, (p. 428.)</p>

Bill by the State of West Virginia against the Duquesne Coal Company, Rush Smith, trustee, and others, in which the first-named defendant filed a cross-bill against. Rush Smith, trustee, and others, and Rush- Smith, trustee, and others, filed cross-bill against the first-named defendant. From the decree rendered defendants Rush Smith and others appeal.

■Suit by E. M. Senter, administrator of tbe personal estate of James H. Gilmore, ’against J. Albert Toler, trustee, and others. From a decree for plaintiff, defendants appeal.

Action by Boyce Miller and others against S. H. Hatch, in which plaintiff caused an attachment to issue, and in which the Federal System of Bakeries of America and others filed a claim to the attached property. To review the judgment* rendered, claimants bring error.

<p>1 Nuisance — Elements of Cause of Action for Permanent Damages to¡ Realty Stated.</p> <p>The requisite elements of a cause of action for original and permanent damages to real property, as contradistinguished from temporary or recurrent damages, are, ordinarily, permanency of the cause of the injury and constancy and materiality in the injury to the property, working serious impairment of its value, (p. 450).</p> <p>2. Same — Element of Permanency of Cause of Injury Lacking Permanent Damages.</p> <p>As a general rule, the element of permanency of cause of injury is lacking in cases of public and private nuisances working such injury, because, in such cases, the nuisance constituting the cause ‘from which the injury and damages arise, is abatable, both by acts of the parties, and especially of the wrong doer, and by judicial process, (p. 450).</p> <p>3. Same — Action Maintainable for Continuing Nuisance.</p> <p>Except in the case of public and quasi public corporations, a business conducted, or a structure or works erected and maintained by a person or corporation, on his own property, in such manner as to work injury and detriment to an adjoining or neighboring owner of land, in respect of the use, enjoyment and value of his property, is a continuing nuisance for which successive actions may be maintained and temporary damages only recovered, and which, if the injury is irreparable, may be abated by judicial process, at the instance of the injured party; unless such relief is precluded by waiver of right thereto, in some form. (p. 450).</p> <p>4. Same — Damages to Land From Business Held Temporary, Not Permanent.</p> <p>•Damages to land, occasioned by emission of smoke, gases, dust and fumes from smelting furnaces maintained and operated on an adjoining or neighboring tract of land, causing deposit of chemical substances which impair its enjoyment, productiveness and value, are temporary in the legal sense of the term, and permanent damages are not recoverable for such an injury, (p. 455).</p> <p>5. Same — Agreement as to Cause of Action Not Recognized.</p> <p>A cause of action for temporary damages so created cannot be treated and maintained in litigation, as one for permanent damages, by tacit agreement of the parties, or the form of procedure adopted by them. (p. 448).</p>

<p>1. New Trial — Movement for New Trial on After Discovered Evidence Must Show Lack of Knowledge Before Trial and ' Diligence to Obtain Evidence.</p> <p>A litigant moving for new trial, on the ground of after discovered evidence, must clearly show by facts stated, his lack of knowledge of such evidence before trial, and diligence to obtain such knowledge and the evidence itself.</p> <p>2. Same — New Trial for After-Discovered Evidence Not Awarded Where Merely Cumulative.</p> <p>A new trial should not be awarded where the after discovered evidence is merely cumulative.</p> <p>(McGinnis, Judge, absent).</p>

<p>1. Sales — In Action for Purchase Price of Goods Defendant May Recoup Damages Oy Reason of Goods Not Conforming to Contract.</p> <p>In an action by the plaintiff for the purchase price ' of a carload of bananas sold to and accepted by the defendant, the defendant may .recoup damages sustained by reason of the bananas not conforming to the contract, (p. 659).</p> <p>2. Same — Title in Goods Passes Upon Delivery to Carrier or Diversion from Original to Purchaser, “Rolling”.</p> <p>Where plaintiff sold defendant a carload of bananas f. o. b. New Orleans, and the bananas were of the kind and quality agreed upon and were delivered to the carrier, properly packed and iced for shipment, consigned to the defendant pursuant to contract, title passed upon delivery , to the carrier. An’d if such sale were made “rolling” f. o. b. New Orleans, that is, while the car was on its journey from New Orleans, by diverting it from the original consignee to the defendant, and the bananas, when diverted, conformed to the contract, title thereto passed to the defendant upon diversion thereof to lum.' (p. 661).</p> <p>-3. Same — Goods Packed for Shipment and Otherwise Conforming to Contract at Buyer’s Risk After Delivery to Carrier or Diversion to Buyer.</p> <p>Whether the sale was made f. o. b. New Orleans or “rolling” f. o. b. New Orleans, if the bananas were properly packed and iced for shipment and otherwise conformed to the contract, at the time of delivery to the carrier or at the time of 'diversion, they were thereafter at the buyer’s risk and the seller is not liable for deterioration naturally resulting during transit. If they were damaged thereafter through the neglect 'of the carrier, the seller is not responsible therefor. (p. 661).</p> <p>4. Trial — Trial Court Must Direct Verdict for Plaintiff Where Evidence clearly Insufficient to Support Verdict Returned for Defendant.</p> <p>Where the evidence given on behalf of defendant is so clearly insufficient to support a verdict for him that such verdict, if returned by the jury, must be set aside, and the evj-denoe in support of plaintiff’s claim is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff, (p. 663).</p> <p>(McGinnis, Judge, absent.)</p>

<p>1. Executors and Administrators — Suit for Legacy May be Maintained by Legatee Against Decedent’s Personal Representative and Those Interested, in Subject-Matter.</p> <p>A bill in equity to recover a legacy may be maintained by the legatee against the decedent’s personal representative and those interested in the subject matter.</p> <p>2. Equity — Suit to Recover Legacy Not Su-bjeot to Demurrer Because Also Asking for Construction of Will.</p> <p>Such a bill is not subject to demurrer because as an incident to the relief sought it prays for a construction of the will in harmony with the main purpose of the bill.</p> <p>3. Wills — Bequest Under Residuary Clause to Wife for Life Held to Test Absolute Estate.</p> <p>By will decedent first directed that all his just debts and funeral expenses be "paid; and after making certain devises to his four children, made the following provision for his wife:</p> <p>“I also bequeath and devise to my beloved wife, Huida, A. Blake, all of my property both real and personal situated in the village of Rosbys Rock consisting in houses and lots and household goods to have and to hold to her during her natural life-time and at her demise I direct that the real estate in Rosbys Rock Shall be Sold and the proceedings thereof be divided equally between my three daughters, And the Household goods be equally distributed among my four children, three daughters and one son. I further give and bequeath to my wile, Huida A. Blake, all the resadue of my personal property consisting in money credits or bonds, to have and to hold to her for her own individual use during her lifetime, and at her demise after paying all he just debts and funeral expenses the resadue if any be left to be equally divided among my four children.</p> <p>Under the residuary' clause the wife in entitled to an absolute estate in such residue of the decedent’s money, credits and bon'ds.</p> <p>(MoGismsris, Judge,'absent).</p>

<p>Appeal from Circuit Court, Wetzel County.</p> <p>Suit by Ray Martin and others against Samantha B. Moore and others. Prom a decree for defendants, plaintiffs appeal.</p>

<p>1. Landloed and'Tenant — Lessees Held, to Save Right to Renew.</p> <p>A written lease of a house used and intended to be used principally for retail mercantile purposes, which states that “first party (the lessor) is to remo'del the front of said house in accordance with present plans, and party - of the second part (lessee) to pay for any and all repairs made by him and to> have first privilege of renting said premises for five years longer at one hundred and twenty-five dollars per month, and to repair water pipes in case of freezing, at any time party of first part desires to sell party of second part shall have refusal,” properly construed, means that the lessee has the right, if he elects, at the end of the term, to rent the house for a period of five years at the price and upon the terms stipulated, irrespective of the wishes of the lessor to cease to rent the premises and to terminate the' lease at the end of the term. (p. 682).</p> <p>2. Same — Renewal Clause of Lease, Like Other Provisions, Construed in Favor of Tenant.</p> <p>Generally, the renewal clause of a lease, like its other provisions, should he construed in favor of the tenant rather than in favor of the landlord. ' (p. 688).</p> <p>(McGinnis, Judge, absent).</p>

<p>Appeal from Circuit Court, Tyler County.</p> <p>Suit by John L. Allen and others against the Colonial Oil Company. From a decree -for plaintiffs, defendant appeals.</p>