The opinion
Lovins, Judge,
dissenting:
I concur in the reversal of this case, but I do not concur in all of the reasoning set forth in the Court’s opinion.
The opinion approaches the question on the basis that the land of the plaintiff and the building erected thereon are separate entities. I do not think that such is the proper approach.
It is an ancient rule that houses and other buildings erected upon land are considered as land under the doctrine of accession. “It legally includeth also castles, houses, and other buildings: for castles, houses, & c. consist upon two things, viz. land or ground, as the foundation or structure thereupon; so as passing the land or ground, the structure or building thereupon passeth therewith.” 1 Coke Upon Littleton, Thomas, Book II, Chapter 1. “So that the word ‘land’ includes not only the face of the earth, but every thing under it, or over it.” Volume 1, Chitty’s Blackstone, star page 19. “All real property or things real, are said to be comprehended un *842 der the terms, lands, tenements, and hereditaments. Land is the soil of the earth, and includes everything erected upon its surface,- or which is buried beneath it.” Tiede-man on Real Property, Third Edition, Part 1, Section 2. See Sharswood, Blackstone’s Commentaries, Book II, Chapter 11, page 16; Williams on Real Property, 22nd Edition, page 34; 1 Washburn on Real Property, Sixth Edition, Chapter 1, Section 2; Notes on Real Property, Graves, page 16.
We have authority on that subject in our own jurisdiction. Fruth v. Board of Affairs, 75 W. Va. 456, 460, 84 S. E. 105 ; Jones v. Shufflin, 45 W. Va. 729, 731 , 31 S. E. 975 . Lastly, a statute which reads as follows: “The word ‘land’ or ‘lands’ and the words ‘real estate’ or ‘real property’ include lands, tenements and hereditaments, and all rights thereto and interests therein except chattel interests.” Code, 2-2-10, Sub-paragraph (p).
Starting from the premise that land and the buildings thereon constitute a single entity, as shown by the preceding paragraph, I think that there could be no separation of the dwelling house located on the McCabe lot and the land on which it was located. It will be noted that the Court’s opinion cites no authority for treating the building and the land as separate elements. It is only fair to say that neither have I been able to find any authority explicitly discussing that question, the probable reason for lack of authority being that such treatment has never been accorded the subject in an opinion of a court of last resort.
There are certain guide posts however, which are found in the cases hereinafter cited, which disclose that the instant case is such a rare instance where lands are treated as being separate from the buildings located thereon. Where there has been a total destruction of a building or other structure by fire, water, tornado, windstorm or other casualty, leaving the bare land, the value of the destroyed property may be so treated. But in the instant case, there was damage to the land on which the *843 dwelling house was located. The dwelling house in its damaged condition remains on the land. Of -course, it is a question of proof whether the damage to the land caused the damage to the building. That is a question of fact which was resolved by the jury in favor of the plaintiff and it is proper to say at this point that the connection between the damages to the dwelling house and the breaking and slipping of the land is not so well established.
Adverting again to the guide posts in the solution of the question here presented. The recent case of Winnings v . Wilpen Coal Co., 134 W. Va. 387 , 59 S. E. 2d pages 655, 662, damages to a house caused by a subsidence of the surface of the land, as well as damages to the land, were treated together. See Prestonsburg Superior Oil Gas Co. v. Vance, (Ky.) 284 S. W. 405 , wherein a house was destroyed by fire. The fifth headnote reads as follows: “Measure of damages for destrtiction of building by fire is not market value of building, which has no such value apart from ground on which it stands, but its fair and reasonable value when and where destroyed. (Emphasis supplied)
It is necessary to say here that I do not disagree with the measure of damages laid down in the Court’s opinion in the instant case, but it will be noted in the above quoted headnote that the Court held in the Prestonsburg Superior Oil Gas Co. v. Vance, supra, that the building had no market value apart from the ground on which it stood, “It has been held that such value is not the market value of the building, because a building apart from the ground on which it stands cannot be said to have a market value.” 15 Am. Jur., Damages, Section 112, et seq. See Jacksonville, T. & K. W. R. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 157 , 9 So. 661 , 689; McMahon v. Dubuque, 107 Iowa, 62 , 77 N. W. 517 ; Prestonsburg Superior Oil Gas Co. v. Vance, supra; Sutherland Damages, Fourth Edition, Sections 1015 and 1053.
*844 Of course, if the building is to be separated from the land and removed from the land, it may be treated as personal property. 73 C.J.S. Property, Section 11, et seq. But here, there is neither separation, contemplated separation, nor removal of the building from the land on which it is situated. In the instant case, the dwelling house, in its damaged condition, is a part of realty and cannot be separated therefrom, nor has it been destroyed. See Givens v. Markall (Cal. App.) 124 P. 2d 839 .
A summation of my view on this case is: I have some doubts about the first point of the syllabus; I agree with the second, third, fourth, fifth, sixth and part of the seventh point of the syllabus. I do not think however, that the items of damages are “severable”, in the facts disclosed by the record of this case. I think that the judgment of the lower court was properly reversed, but I do not agree with the reasoning as herein noted, hence, this criticism.