Beach v. Wilmington & Weldon Railroad , 120 N.C. 498 ( 1897 )

This action was begun in 1893. The complaint, among other things, alleges the ownership of the land, its previous proper drainage by the plaintiffs, the construction of the branch road in 1889 and the injury resulting from the diversion of the water. Paragraphs 5 and 6 are as follows:

"5. That in the construction of its road the defendant dug or caused to be dug a ditch on each side of this bed of said road, whereby a large and unusual volume of water was diverted from its natural channel and proper course and turned upon the lands and into the canal and ditches of the plaintiffs, thereby flooding the lands and choking the ditches with sand, mud and trash so that the diverted waters, as well as the waters of the plaintiff's lands, became ponded upon the said lands, rendering the same, which heretofore yielded good crops, worthless, or nearly so, for purpose of agriculture.

"6. That by reason of said diversion of waters and obstruction to the fall of plaintiffs' canal and ditches the defendant has within the three years next before the bringing of this action negligently and unlawfully caused large quantities of water to be poured upon the lands of the plaintiffs to the great damage of the land and the crops growing thereon, towit, five hundred dollars."

The defendant requested the Court to instruct the jury as follows: "That it is admitted that defendant's road was constructed during the year 1889, and if you believe the plaintiffs' evidence, the plaintiffs acquired title to the land in the year 1890; that the original trespass or cause of damage was done by the construction of defendant's road in 1889, and the plaintiffs, not being the owners of the land at the time of the original trespass was committed, cannot sustain their (501) action and are not entitled to recover anything in this action." This instruction was refused and defendant excepted, which is the only exception before us.

We think the instruction was properly refused. The jury found that the plaintiffs were the owners and in possession of the land, and no other issue on this point was submitted, or tendered by the defendant. All of the issues were found in favor of the plaintiffs.

It appears from the evidence that these lands belonged to the feme plaintiff, having been allotted to her in 1890 in the division of her father's lands. When her father died does not appear, but certainly before the division of his lands in 1890. The plaintiffs are shown to have been in actual possession of one tract when the road was built in 1889.

The action was brought, apparently, to recover continuing damages for the three years next preceding, but by consent, or at least with objection, the issues were submitted covering only permanent damages. When this permanent damage occurred does not appear, further than by the allegation in the complaint that the injuries complained of were within three years next preceding the bringing of the action. The ditches, dug in 1889, when the road was built, were the primary cause of the permanent damage, but the damage itself immediately resulted from the filling up of the plaintiffs' ditches with sand, mud and trash, so that thediverted waters, as well as the waters of the plaintiffs' land, became ponded upon the said lands, thereby rendering them practically worthless. These lands were not immediately on the railroad or adjacent to the right of way, and it is evident that the damage could not have occurred simultaneously with the construction of the road. The cause must precede the effect and, as ditches do not fill up instantly, considerable time may have intervened. There can, therefore, be no presumption that the permanent damage occurred before the (502) plaintiffs' ownership, and we find no evidence to that effect.

The case of Ridley v. R. R., 118 N.C. 996, cited and approved inParker v. R. R., 119 N.C. 687, lays down the rule that "the statute of limitations begins to run in such cases, not necessarily from the construction of the road, but from the time when the first injury was sustained." This means, of course, the first substantial injury, as it would be a hardship to require a plaintiff to bring an action when his recovery would necessarily be merely nominal, and yet would be a bar to any future action. The same rule would apply, by analogy, where the first substantial damage occurred after a change in ownership. The word "permanent," as applied to injuries and damages, is apt to mislead, as it is used not only in cases where the damages is all done at once, as, for instance, in the tearing down of a house, but also to those cases where the damage is continuing and prospective. In these latter cases the damage is called "permanent," because it proceeds from a permanent cause and will probably continue indefinitely as the natural effect of the same cause. Such is the case where the cause is apparently permanent and the damage necessarily continuing or recurrent. The interest and convenience of the public will not permit the abatement of the nuisance, and the law does not contemplate an indefinite succession of suits. Therefore, a lump sum is recoverable, at the demand of either party, in consideration of which the defendant acquires the right to discharge its ditches upon the plaintiff's land. This is nothing more than an easement appurtenant to the defendant's right of way. The amount recovered is not the estimated sum of all future damages expected to result from a continuing trespass, for such damages, running indefinitely, (503) perhaps forever, would be utterly incapable of calculation; and, moreover, it would be giving the defendant a right to commit a wrong. The sum recoverable is the damage done to the estate of the plaintiff by the appropriation to the easement of so much of his land, or such use thereof as may be necessary to the easement. The right of leading and discharging surface water over or upon the land of another is always enumerated among the usual easements recognized both by the common and civil law.

It is true, it has been sometimes said that easements are acquired only by grant or prescription, but this applies only as between private parties and is usually a mere denial of assessment by parol. It does not apply to condemnation proceedings or other actions in the nature thereof. Indeed, this Court has held, in Blue v. R. R., 117 N.C. on page 649, that nothing but an easement can be acquired by judgment of condemnation. While the opinion does not use the word "easement," it accurately describes an easement, and does use the appropriate term "servient tenement," as applied to the land itself. The right of the defendant to hereafter discharge its ditches upon the lands in question being an easement, acquired only by the result of this action, the plaintiffs are clearly entitled to damages resulting from the acquisition of the easement. There is no allegation that the railroad company has ever paid any damages to any one for this injury or in consideration of the easement.

In the argument of this case before us, counsel insisted that the opinions of this Court in Ridley's and Parker's cases, supra, are mutually inconsistent, and that one or the other would necessarily be overruled in the decision of the case. Although the statute of limitations is not raised in this case, we have carefully examined the cases above cited and can find no such inconsistencies and certainly none relating to the principles herein involved. (504)

The judgment of the Court below is affirmed.