Oakley v. Texas Co. , 236 N.C. 751 ( 1953 )

73 S.E.2d 898 (1953) 236 N.C. 751

OAKLEY
v.
TEXAS CO.

No. 737.

Supreme Court of North Carolina.

January 6, 1953.

Donald J. Dorey and R. B. Dawes, Roxboro, for plaintiff-appellant.

Clem B. Holding, Raleigh, for defendant-appellee.

DEVIN, Chief Justice.

The defendant did not demur to the complaint, but demurred to the reply as having failed to set forth facts sufficient, as against the plea of the statute of limitations, to show the action was instituted within the time limited.

The theory of the demurrer is that the complaint, though alleging the injury was due to defendant's negligence, sets out a case of continuing trespass, and that under the statute, G.S. § 1-52(3), the action therefor must have been commenced "within three years from the original trespass, and not thereafter"; that the plaintiff has fixed November 1948 as the first injurious act, and his suit was not commenced until January 4, 1952.

The defendant's position is that the complaint has described a continuous injury to his real property amounting in law to a trespass beginning November 15, 1948, and that in attempting to reply to the plea of the statute in the answer plaintiff has failed to state facts which would show his action was brought within the statute.

Giving that liberal construction to the plaintiff's pleading that the rule in this jurisdiction requires, Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874, we think the plaintiff has set out in his reply definite dates of alleged recurring acts of negligence or wrongful conduct on the part of the defendant in 1949 and 1950, each causing renewed injury to his property and culminating in the loss of his well and his sandwich business.

In Sample v. John L. Roper Lumber Co., 150 N.C. 161, 63 S.E. 731, 732, the plaintiff sued to recover damages for wrongful timber cutting. There was evidence that the cutting had begun more than three years before suit, and had been continuous. On the question of the statute of limitations the Court had this to say: "True the statute declares that actions for trespass on real estate shall be barred in three years, and, when the trespass is a continuing one, such action shall be commenced within three years from the original trespass, and not thereafter; but this term ``continuing trespass' was no doubt used in reference to wrongful trespass upon real property caused by structures permanent in their nature, and made by companies in the exercise of some quasi public franchise. Apart from this the term could only refer to cases where a wrongful act, being entire and complete, causes continuing damage, and was never intended to apply when every successive act amounted to a distinct and separate renewal of the wrong."

This statement of the law was quoted with approval in Teeter v. Postal Tel. Cable Co., 172 N.C. 783, 90 S.E. 941, and Ivester v. Winston-Salem, 215 N.C. 1(9), 1 S.E.2d 88.

In Anderson v. Waynesville, 203 N.C. 37, 164 S.E. 583, 587, it was said: "The injury resulting from a nuisance or a trespass upon real property is continuous in its nature, and gives successive causes of action as successive injuries are perpetrated. Continuous injuries caused by the maintenance of a nuisance are barred only by the running of the statute against the recurrent trespasses". See also Perry v. Norfolk Southern R. Co., 171 N.C. 38, 87 S.E. 948; Lightner v. Raleigh, 206 N.C. 496(504), 174 S.E. 272; 34 A.J. 106; 54 C.J.S., Limitations of Actions, § 169, p. 127.

There was error in sustaining the defendant's demurrer to the reply.

Judgment reversed.