Fordyce v. Stone , 50 Ark. 250 ( 1887 )

Battle, J.

W. T. Stone, being the owner of land in, Ouachita county, for the consideration of one dollar gave a right of way over it to the Texas and St. Louis Railway-Company, only reserving his right to damages to improvements. On the 15th of October, 1885, he commenced this-action in the Ouachita Circuit Court, and alleged in his complaint, that, in the spring of the year 1885, the Texas and' St. Louis Railway Company located and constructed its railway over it, and thereby damaged him in the sum of three-hundred dollars, and asked for judgment therefor. The defendant answered and pleaded, among other things, the three years statute of limitations in bar of his right of recovery.. The evidence adduced in the trial sustained this allegation,, showing that the railroad was located and constructed over-his land in the spring of 1882.

Many questions are involved in this action, but it is only necessary to decide one of them, and that is the question. raised by the plea of the statute of limitation. Is this action barred?

. The statute of limitations begins to run against all actions for damages caused by nuisances of a permanent character 'from-the time th.ey'are created. The reason of the rule is, ’the entire damage inflicted .is of a permanent character, and .goes to the entire destruction of the estate affected thereby, and is caused at the time the nuisance is created, is original, and may be at once fully compensated. A fair illustration of nuisances of this character is, the building of a railroad •over the land of an individual. In that case the original act •creating the nuisance at once produces all the damage that over can result from the act, and destroys the land used for ufche right of way for all practical purposes, so that when it is built all the damage that can.ever be effected thereby is c >n-summated. This fact is recognized- by the statutes of this 'State- in requiring railroad companies, in all cases where they fail to obtain, by agreement with the owner of lands through which their line of road is or may be located, the right of way over the same, to have the damages for such right of way assessed before they shall build their road over such land. If this were not true railroad companies would be liable to be sued every day by every individual over whose lands they have built their roads without procuring the right of way by agreement, and disastrous results might follow. Troy v. The Cheshire Railroad Co., 23. N. H., 83; Wood on Limitations, p. 371.

The complaint in this case alleges injury from the first •construction of the railroad, and asks for judgment for the sdamages caused thereby. The evidence shows, and it is alleged in the complaint, that it was constructed iu the spring •of 1882, more than three years before the commencement ot this action. The action is barred. Reversed and remanded.