Cobb v. Wrightsville & Tennille Railroad , 129 Ga. 377 ( 1907 )

Lumpkin, J.

(After stating the facts.)

1. Since the adoption of the original • code, taking effect in 1863, the strictness of the old rule as to repugnant clauses in a deed has been much modified. Substance, rather than technical nicety in the location of clauses, is controlling. The intention of the parties is the cardinal rule of construction. If it be clear, and sufficient words' be used to arrive at the intention, and it eon- • travenes no rule of law, it is to be enforced, and is not to be sacrificed to arbitrary rules- of construction. Civil Code, §3673. “If two clauses in a deed be utterly inconsistent, the former must prevail, but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into' effect.” Civil Code, §3607. The modern trend of decisions is in this direction. 13 Cyc. 618. Here the granting clause of the deed was to “Mary A. Crawford, her heirs and assigns.” The habendum clause was “to have and to hold . . unto the said' Mary A. Crawford, her heirs and assigns, forever in fee-simple; and after her death to such child or children as she may have by .the said W. T. Crawford, share and share alike.” Construing the whole deed together, we think it was clearly the intention of the maker to create a life-estate in Mary A. Crawford, with remainder to such child or children as she might have by W. T. Crawford. Thurmond v. Thurmond, 88 Ga. 182 (14 S. E. 198); Rollins v. Davis, 96 Ga. 101 (23 S. E. 392); Henderson v. Sawyer, 99 Ga. 234 (35 S. E. 312); Huie v. McDaniel, 105 Ga. 319 (31 S. E. 198); Collinsville Granite Co. v. Phillips, 133 Ga. 830 (6), 838 (51 S. E. 666).

2, 3. “A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. . . Where a nuisance is not permanent in its character, but is one which can and should be abated by the qjerson erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie.” City Council of Augusta v. Lombard, 101 Ga. 727 (28 S. E. 994), and cases cited; Parks v. Ingram, 22 N. H. 283 (55 Am. Dec. 153). Where a structure, though permanent in character, is not necessarily and of itself a permanent and continuing nuisance, but becomes so in consequence of some supervening cause which produces special injury at different periods, separate actions may be brought, and the statute of limitations begins to run when the special injury is occasioned. Lombard’s case, supra. Here the taking of a right of way and the constructing of a railroad was a' complete act, permanent in its nature. If the taking was a trespass, the loss of the value of the land to the true owner then occurred; and if the construction of the railroad through the plaintiff's land damaged its value by dividing it into two parts, the damage was then consummated and complete. The cause of action then arose to the plaintiff, and the statute of limitations began to run against her. If she was a minor, it was suspended during her minority. Actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues. Civil Code, §3898. It is evident that the plaintiff was barred from suing for the damage arising from taking the land alleged to be hers, and from the dividing of her other land into two parts by the construction of a railway.

It is contended that the retention of possession by the defendant constituted a continuing trespass, and that the statute did not run. “Damages for a continuing trespass are limited to those •which have occurred before action is commenced. Subsequent damages flowing from a continuance of the trespass give a new cause of action.” Civil Code, §3884. But, as already shown, this was not a continuing trespass or nuisance, which should be stopped or abated, but a complete and perfect- act, permanent in its nature, from which apparently all the damages alleged to the plaintiff’s property which ever would happen had already occurred. It was not alleged that- from the operation of the road any additional damages had resulted, or that there was a continuous, progressive, or added injury. Danielly v. Cheeves, 94 Ga. 263 (3) (21 S. E. 524). This is not an action of ejectment, with an added prayer for mesne profits, which, under our code, are recoverable by a plaintiff in ejectment in that action and not by a separate suit. Civil Code, §§4997, 4998. Even if a separate action could have been brought, on the ground that the unlawful retention of possession of the strip had deprived the plaintiff of its use during the four years last passed, and caused a continuing injury to the remainder of the land, certain it is that a plaintiff can not recover both for the entire value of the strip of land taken and also for the loss of its use, nor for the entire depreciation in value of the rest of the land, and also its depreciation for four years.

4. The deed under which the plaintiff claimed title created a life-estate in Mary A. Crawford, with remainder to such child or children as she might have by W. T. Crawford, share and share alike. The plaintiff alleged that she was the daughter of Mary A. Crawford, but did not allege that she was the daughter of W. T. Crawford. She thus failed to show that she was entitled to bring the action.

The demurrer was properly sustained.

Judgment affirmed.

All the Justices concur, except Evans, Jo, disqualified.