The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-09-05

SDockets Called In Each Side Before
Judges PAUL. and Hervey.
The circuit court in both parts open
ed the September term yesterday. The
calling and dIsposing Of the docket was
the principal feature. The application
for an injunction to restrain the pro-
prietors of Pleasant Valley Park from
selling liquor was not taken up, being
postponed until to-day at p. M. when
1t comes up before Judge PAUL. The
motion to postpone was offered by the
defendants attorney, Mr.. Boyce.
An important feature Of the days sit
ting was the opinion handed down by
Judge PAUL In theN well known Paige
Carey case. With minor exceptions,
the exceptions to the report of Commits
sloner G. R. E. Gllchrist IRE overruled.
The courts opinion was as follows;
City of wheeling VS.. Paige, Carey &
co. and others; in chancery. Upon eH-
ceptIons TO the report Of Commissioner
Gilchrlst, filed herein on April 2lst, 1888:
/, The city Of Wheeling excerpts to
said report, because the commissioner
does not allow 1t credit for 1896 so, the
cost OF retaining wall
1t may be true, as claimed by the city.
that Paige, Carey & Co. were required
By the terms OF their contract with 1t to
restore the street to Its original condi-
don: and that the building Of retain
inE wall wus necessary for that pur-
pose; but 1t is also true that the retain
ing wall in question was built very
strong and deep In order that 1t might
serve rs a front wall for any buildings
that might thereafter be erected upon
the abutting property. Clearly, Paige.
Carey & Co. were not required by the
terms OF their contract TO build n re-
taInlng wall OF that character. And Just
what one built solely for the purpose OF
restoring the street to Its original con-
dltion would cost, the evidence fails 10
disclose. The exception must therefore
be oyerruled for this II for no other rea-
son.
The city Of Wheeling also excerpts to
said report, because the commissioner
charges 1t with interest on $l2,S4l 81
from November 18th, 1892.
Thish exception Is overruled, for the
reasons stated by the commissioner IN
2. As to the exceptions filed by Lewis
Steenrod to said report:
In Smith. ReceIYershlp, section ub, II
a said: "All classes OF trustees having
money in their hands belonging to a
trust estate are bound to keep the trust
fund separate and distinct from moneys
Of their own; and II deposited in bank
for safe keeping the money should be
deposited as the credit OF separate ac-
count In their names as trustees so that
the funds can be at all times traced and
identified; but II this be not done and
the court can see that by mingling OF
the trust fund with their own the truss
tees have derived any benefit from their
use, they are chargeable with interest.
simple or compound, as the facts may
require"
The facts OF this case bring Mr..
Steenrod clearly within this principle.
and show that he was properly charged
with interest on the trust fund In his
hands. 1t was also proper for the
commissioner to ascertain the amount
OF that fund in this suit; Crawford US.
Hickey, Al w. Va. 547.
The exceptions therefore must pc
Oyerruled.
tale. II Is Insisted that not only the
buildings, but the land itself. belonging
to this estate was damaged by the con-
structlon Of the Main street bridge; that
this damage necessarily resulted from
the nature and character OF the work
which Paige, Carey & Co. contracted TO
do for the city in the matter Of the
construction OF that bridge, and that,
under these circumstances, both the
contractors and the city are responsible
therefor, even though the work WIS
carefully and skIllfully performed, cit
D unpfinH lOIV md
1851; Shear. & Redf. Neg, sections no.
99S.
But that principle. rs an examination
Of the decisions cited In support thereof
VIII show, does not apply to case Ike
this. where the damage resulted solely
from an Interference with lateral sup
port. All such cases are governed Dy
the following rules:
~ There Is Incident to land In us
natural condition n right to support
from the adjacent land, and II 1t sinks,
slldes or falls away in consequence OF
the removal OF such support, the owner
Is entitled 10 damages for any injury to
his soil. caused by such removal, wheth-
ef the injury was the result OF negLi-
Rence or otherwise: Shear. & Redt.,
Neg. sec. 7O1; Am. & Eng. Enc. Law
(2J But this right with certain ex-
captions which DO not exist neTeJ II llI-
fled to the land itself. and does not IN
clude the buildings thereon. For any
injury to them, caused by an eXchVh-
ton on the adjacent land. an action can
be maintained by the landowner only
when the excavation was negligently
made, or no notice OF the proposal to
make the Same was given: Shear. d
Redf, Neg. sec. FOL; / Am. e. Eng. Enc.
Law (2d cd. $50; Notes 10 Larson v.
Metropolitan Street R'y Co., 30 Am ST.
Rep. AeS-47l.
The evidence shows conclusively. 1t
seems to me. that the land In question,
In It's natural condition. Is worth as
much since the building Of the bridge
and retaining wall as 1t was before:
Hence the Goshorn estate IL not entitled
to any damages under the rule hrst
above announced.
A. to damages under the second rule
The commissioner reports TINT Paige
Carey & Co. were not guilty OF negu-
Eence In making the excavation which
caused the destruction OF the Goshorn
buildings; that Mr.. Goshorn hlmselL Or
On~SS>enSc SSISI9
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