Barclift v. Norfolk Southern Railroad , 175 N.C. 114 ( 1918 )

The action, instituted 30 October 1915, is to recover for the alleged wrongful diversion of water by defendant company on the lands of plaintiffs R. C. Barclift and his wife, Lavina, causing substantial damages to the same. On denial of liability, the jury rendered the following verdict:

1. Is the plaintiff the owner of the land described in the pleadings? Answer: "Yes."

2. Has the defendant wrongfully diverted and discharged the water on the lands of the plaintiff, as alleged? Answer: "Yes."

3. What damage, if any, was done to the crops of Luna Barclift during the years 1913, 1914, 1915, 1916, and 1917? Answer: "1913, $75; 1914, $75; 1915, $87.50; 1916, $50; 1917, $100. Total, $387.50."

4. What permanent damage, if any, has the plaintiff, Lune Barclift, sustained to her lands described in the complaint by the wrongful acts of the defendant? Answer: "$50."

5. Is the right of action of the plaintiffs barred by the statute of limitations? Answer: "No."

Judgment on the verdict for plaintiff, and defendant excepted and appealed. There were facts in evidence tending to show that defendant company, constructing its road in 1881, by lateral ditches diverted quantities of water from its natural flow and drainage and by a drain ditch conveyed a part of this diverted water towards the lands of plaintiffs, passing through a culvert under a county road, etc.; that this drain ditch, as originally made by the company, was about six feet wide and two to three feet deep and held the water in such fashion that the culvert under the county road and lower drain ditches were sufficient to carry same to a natural water course and without appreciable injury to plaintiff's lands or the production of crops growing thereon; that in 1911 the company enlarged this drain ditch to 9 feet in width and made it much deeper, and in this way increased the flow of this diverted water to such an extent that the culvert under (116) the road and the lower ditches were insufficient to carry it off, and the plaintiff's lands and the crops he endeavored to grow thereon were thereby greatly injured and damaged.

These facts, which have been accepted by the jury and established by their verdict, give plaintiffs a clear right to recover, and there is no error, to defendant's prejudice, in the proceedings below.

Our statute, Revisal, sec. 394, subsec. 2, provides that actions to recover damages caused by the construction of railroads or repairs thereto shall be commenced within five years after the cause of action accrues and requires that, in any such action, the jury shall assess the entire amount of damage which the party aggrieved is entitled to recover by reason of the trespass upon his property. In construing this statute, it has been repeatedly held that the limitations begins to run, not from the time the road or structures are built or repaired, but from the time that said structures cause appreciable and substantial damages to the property. It is further held that the entire damages shall be awarded, "past, present and prospective," and that said damages may properly include, not only the depreciation in the value of the land incident to the trespass, but also the injury to growth of crops during the period covered by the inquiry and to the time of trial, and that these different sources of damages may be assessed on separate issues if such a course is found desirable. These positions were all recognized and applied in Barclift v. R. R.,168 N.C. 268, a suit between these same parties concerning another piece of land in the same locality and involving the same diversion of water and the trespass incident to this alleged wrong. That well-considered case is in full accord with our decisions on this subject, and we regard it as decisive of all questions presented on the present appeal. Perry v. R. R.,171 N.C. 38; Duvall v. R. R., 161 N.C. 448; Porter v. R. R., 148 N.C. 563;Beasley v. R. R., 147 N.C. 362; Stack v. R. R., 139 N.C. 366; Ridley v. R.R., 118 N.C. 996.

We find no error in the record, and the judgment for plaintiff is affirmed.

No error.

Cited: Barcliff v. R. R., 176 N.C. 41; Jackson v. Kearns, 185 N.C. 420;Phillips v. Chesson, 231 N.C. 570.

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