Russell v. Board of Directors , 110 Ark. 20 ( 1913 )

Smith, J.,

(after stating the facts). There can be no question about the permanency of' this levee. It is true the levee which was built in 1907 gave way in 1908, but the following year saw the levee enlarged and strengthened, and appellants can not plead their incredulity in the face of these physical facts.. That damage would result from the construction of this levee was certain, and appellants had seen before the first break in the levee the certainty of damage and the approximate nature and extent of this damage. The damage was original and the cause of action therefor arose immediately upon the completion of the levee. Board of Directors v. Barton, 92 Ark. 406.

The general statutes of limitation against causes of action, such as the one here sued on, is three years, but the Legislature of 1905, by Act No. 53, passed at that session, provided a method for the exercise of the right of eminent domain by levee, drainage and ditching districts, and also provided a period of limitations against such suits. Sections 8 and 10 of said act read as follows:

“Sec. 8. Whenever the Board of Directors of the St. Francis Levee District, or any other levee or drainage district, may have appropriated, or shall appropriate, any land for right-of-way for the construction and maintenance of either levees, ditches, canals or drains, and constructed levees or drains thereon, without having procured the consent of the owner or owners of such land to construct the levees or drains, or procured the right-of-way, either by purchase, donation or condemnation, such owner, or owners, where their cause of action has not been barred by the statute of limitation, shall have a cause of action against such Board of Directors of the St. Francis Levee District, or any other levee or drainage district, for the market value of the land at the time it was actually occupied, and such damages for inconvenience of crossing from one portion of the tract, then owned by the parties seeking to recover, to the other portion of the tract, as they have sustained, and such damages as the owner, or owners, may have sustained on account of obstruction of natural drainage to the tract of land, over which the levee or drain may have been or shall be constructed, not to exceed the cost of constructing artificial drainage.”

“Sec. 10. All actions for the recovery of damages against any levee or drainage district for the appropriation of land, or the construction or maintenance of either levees or drains, shall be instituted within one year after the construction of such levees or drains, and not thereafter,- provided, that any person, persons or corporation, who may have any existing claims against any levee or drainage district on account of appropriation of land, for the purpose of constructing either a levee, ditch, canal, or drain, or on account of the construction or maintenance of either a levee, ditch, canal, or drain, shall bring their action within six months after the passage of this act, and not thereafter.”

We conclude, therefore, that the court below properly instructed the jury that the suit was barred by the provisions of said Act 53, and the judgment is therefore affirmed.