The opinion
ON PETITION POR RE-HEARING.
In the petition for re-hearing, it is strongly urged that the trespass to the soil was an invasion of an absolue right of the plaintiffs, imposing liability in any event, whether done negligently or carefully, and that, therefore, the court properly refused, instruction No. 15, applying a rule of negligence. It suffices to say, in reply to this, that the plaintiffs had no interest in the soil. They were mere tenants of the second floor of the building, wrongfully injured, if at all, by failure to exercise reasonable care for the safety of the building.
As the'general principles, declared here are favorable to the ■defendants in error and their judgment is reversed merely for refusal of an instruction, they complain of the adjudication of ■costs against them in this Court. It may be that, owing to the magnitude of the record, the costs here will almost equal their recovery, in case they finally prevail in the litigation, but we are unable to perceive, in this circumstance, any reason for a departure from the statutory rule, giving costs to the party substantially prevailing in this Court. It is the result of the litigation, not the reasoning of the Court nor the importance of the principles involved or decided, that determines the liability for costs.
A cross-assignment of error, not noticed in the opinion, is made one of the grounds of the application for a re-hearing, but, as the judgment has been reversed on other grounds, and the subject matter of the cross-assignment can be important only on the new trial, it may be disposed of on this petition, without a re-hearing. On a very large part of the property injured and destroyed, there was a deed of trust, securing the payment of purchase money, in which A. C. Pinson was the trustee. At the time of the trial of this case, he had another action pending for damages to the property covered by said deed of trust. Having proven that fact in the case, the defendant moved the court to exclude all evidence, relating to that part of the property, and direct the jury not to find any damages on account thereof, and the court sustained the motion. Pinson’s action *74 was second in point of time, since the declaration in this one was filed in December, 1906, and the summons in his was issued March 8, 1907. “The original or first suit cannot be abated by a plea that another action for the same cause was afterward commenced.” 1 Cyc. 45, citing numerous decisions for the proposition. This seems to be decisive of the question raised by the exception, the court having excluded the evidence, because of the pendency of another suit, and, apparently, not because of supposed inability of the plaintiffs to sue, the legal title to the property being in the trustee, and they having only an equitable title. However, this question is suggested in the briefs and should be decided.
That an equitable owner of personal property in possession thereof may sue a stranger, in trespass on the case, for an injury done to it by him, seems to be well sustained by both reason and authority. Independent of his equitable title, he has a special title or interest, his right to possession and use, which is invaded to his injurjq and the gist of the action is injury to the possession. Clay v. City of St. Albans, 43 W. Va. 539 ; Wilson v. Phoenix Powder Mfg Co., 41 W. Va. 413 ; 1 Chitty Pl. (11 Am. Ed.) 60-64; Sutherland on Dam., section 1097. From these conclusions, it follows that the court erred in excluding this evidence.
We deem it unnecessary to enter upon an inquiry as to the quantum of damages such an owner may recover, or'the effect of an adjudication in the second suit before judgment in the first, since the record does not disclose what has been done in' the other action. For all we can see, it may have been disposed of by this time. But the authorities here cited clearly indicate the rights of the parties undér all possible circumstances.
We refuse a re-hearing.
Reversed and Remanded for New Trial.