Roberts v. . Baldwin , 155 N.C. 276 ( 1911 )

1. The first and second exceptions to the refusal to enter judgment for the defendant upon the pleadings, or to nonsuit on the evidence, can not be sustained.

The same question was presented and considered on the former appeal in this action (151 N.C. 408), and the Court then said: "The defendant pleaded the three-years statute of limitations and relied upon Revisal, sec. 395 (3): ``Action for trespass upon real property. When the trespass is a continuing one, such action shall be commenced within three years from the original trespass, and not thereafter.' His Honor erred in sustaining the plea. This is not a continuing trespass. It is irregular, intermittent and variable, dependent upon the rainfall as to quantity of water poured upon the plaintiff's land, and in frequency of occurrence. It is true the ditch, which was dug more than three years before suit brought, has been continuously there, but that is on the defendant's land. The trespass is the pouring-down of water upon the plaintiff's land, which comes down at irregular periods and in varying quantities, to the injury of his crops and land. The plaintiff can recover for any injury, caused by water diverted from its natural course, within three years before the action began."

It has been repeatedly decided that a judgment of this Court (280) can not be reviewed by a second appeal. Pretzfelder v. Ins. Co., 123 N.C. 164; Harris v. Quarry Co., 137 N.C. 204; Green v.Green, 143 N.C. 410.

If, however, there was merit in the contention of the defendant, and it had not been heretofore considered, there are no facts appearing on the record, or admitted by the pleadings on which the Court can declare, as matter of law, that the cause of action is barred by the statute of limitations. The defendant denies the allegation that he had committed a continuous trespass, which commenced more than three years before the commencement of the action, and should not complain if the Court declines to act upon the allegation as a fact in the case.

Oldham v. Rieger, 145 N.C. 258, in which the distinction is clearly drawn between the cases in which the Court may decide the plea of the statute of limitations, as matter of law, and when it can not do so, is in point. Justice Walker, speaking for the Court, says: "When the complaint sets out a cause of action which is clearly barred, and the facts areadmitted by the answer, and, in addition to the admission, the statute is pleaded or relied on, then the Court may decide the question as a matter of law. This was the case, as will appear by reference to the statement of the facts in shackleford [Shackleford] v. Staton, 117 N.C. 73, and Cherry v.Canal Co., 140 N.C. 426, in the last of which cases Justice Hoke says: ``The facts are uncontroverted.' But when the complaint states a cause of action apparently barred, and the answer properly denies the facts or the cause of action, and then sets up the bar of the statute, the Court can not dismiss upon a demurrer ore tenus or a motion to nonsuit, for when such a motion is made it must be decided upon the pleadings of the plaintiff or of the adversary of the party who makes the motion, and the Court has no right to look at the pleadings of the opposing party, except to see if the facts are admitted, so as to present merely a question of law."

The defendant did not ask that an issue be submitted on the plea of the statute. The first and second issues tendered may have been so intended, but they did not embody sufficient facts. The ditch may have been dug and used continuously for more than three years before the commencement of the action, and the injury to the (281) plaintiffs may have occurred within the three years.

In Hocutt v. R. R., 124 N.C. 218, the ditches complained of had been cut and in use for more than twenty years, but it was held that the action was not barred because the right of action did not accrue until the plaintiff was injured.

The case seems to have been tried on this theory, as the plaintiffs confined their evidence to injuries sustained within three years, and the court charged the jury: "You can not consider any damage either to crops or to the land of the plaintiffs prior to three years next before bringing this suit. You can go back three years from the time the summons was issued in this case and assess damages both to the land and the crops for that period. You can not go beyond that in arriving at damages either as to the injury to the land or crops."

2. The issues adopted by the court were sufficient to enable the defendant to present his contentions and to develop his case, and this is all he was entitled to. The form of the issues is within the discretion of the judge of the Superior Court, provided they are sufficient to determine the rights of the parties and to support the judgment. Kimberly v. Howland,143 N.C. 398; Clark v. Guano Co., 144 N.C. 71.

3. There was no error in allowing the plaintiff to recover damages for loss of crops in addition to injury to the land. Ridley v. R. R.,124 N.C. 38; Beasley v. R. R., 147 N.C. 366.

The action in Ridley v. R. R., supra, was commenced in 1892, before the act providing for the assessment of permanent damages against railroads, and was decided under the general law, and it was there held that the plaintiff was entitled to a judgment of $800 upon a verdict finding the damage to the land to be $500 and the damage to the crops $300, and it was approved in Beasley v. R. R., supra.

4. We do not think the rule requiring a party injured by the wrongful act of another, to do what he reasonably can to decrease the damages, should be extended, as the defendant contends. To do so would set a premium on illegal conduct and would render useless many of the drainage acts of our State. If the prayer for instruction refused by the court embodies a correct legal principle, it is unnecessary (282) for the upper proprietor to institute legal proceedings to drain through the lands of the lower proprietor.

He may cut his ditches when and where he pleases; may collect and divert water and pour it on the lands of the lower proprietor, and then require him to cut ditches on his land to take care of this water, or, failing to do so, his damages are limited to the expenses he would have incurred in cutting the ditches.

But the instruction as framed could not have been given in any event. The instruction limits the recovery to the cost of digging a ditch from B to C, of sufficient capacity to carry off the water from B. There is evidence in the record that there are ditches on the lands of the plaintiffs between C and the creek, and that the effect of keeping open a ditch from B. to C would be to fill up these ditches.

One witness said:

Q. Wouldn't it be a good thing to keep the ditch, B-C, open? A. I think it would be a big mistake; it would fill up all Robert's ditches between there and the creek.

If the law imposed on the plaintiffs the duty of taking care of the water, surely it would not deny to them the cost of enlarging the ditches from C to the creek, made necessary by the acts of the defendant. The instruction would do so, and, if given, this evidence referred to could not be considered.

5. There were several instructions prayed for that are not set out, because none of them were directed to the issues, and conclude, "the plaintiffs can not recover." Bradley v. R. R., 126 N.C. 740; Foy v.Winston, 135 N.C. 440; Earnhardt v. Clement, 137 N.C. 93.

We think, however, the substance of them, where pertinent, was embraced in the charge.

6. The exception to the charge as a whole is untenable. Sigmon v. R. R.,135 N.C. 181. The case is similar to the case of Briscoe v. Parker,145 N.C. 14, and has been correctly tried.

No error.

Cited: Carson v. Bunting, 156 N.C. 30; Riley v. Sears, ibid., 269;Duval v. R. R., 161 N.C. 450; Barefoot v. Lee, 168 N.C. 90; Barcliff v.R. R., ibid., 270; Cardwell v. R. R., 171 N.C. 367; Hux v. Reflector Co.,173 N.C. 100; LaRoque v. Kennedy, ibid., 461; Borden v. Power Co.,174 N.C. 74; Talley v. Quarries Co., ibid., 449.

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