Jones v. Grand Trunk Railway Co.

WaltoN, J.

The only question is whether the plaintiffs’ claim is barred „by the statute of limitations. It is a claim to recover damages for delay in the transportation of dour. The plaintiffs shipped several lots of flour during the fall of 1866. All of it ultimately arrived and was delivered to the plaintiffs; but none of it arrived in season. Some of it arrived more and some of it less than six years before the commencement of the suit. The plaintiffs concede that their claim for damages, with respect to so much of the flour as arrived more than six years before the commencement of the suit, is barred. The defendants claim that it is barred with respect to the remainder, because the delay had become unreasonable, and, consequently, a right of action had accrued, more than six years before the commencement of the suit. They contend that the subsequent delay — that is, the delay within six years — can have no other effect than to enhance the damages. The plaintiffs, on the contary, contend that the wrong was a continuing one; and that, it having been continued till within six years of the commencement of the suit, the action is maintainable.

We think the plaintiffs’ view is the correct one. It must be remembered that the defendants had possession of the plaintiffs’ •property. So long as it was negligently withheld, so long the plaintiffs were wrongfully deprived of the use of it. It is not a ■case where the wrong is complete as soon as the delay becomes ■unreasonable. It is not a case where the lapse of time only makes manifest the injury which had before been committed. It is the case of a continuing wrong. Every day’s delay may be the cause of additional damage. Every day’s continuance of the delay, like the continuance of a nuisance, or the continuance of a trespass, by occasioning new damage, creates a new cause of action. One day’s delay may occasion little or no damage. Another day’s delay may create great damage. Whatever ■ damage is occasioned by such delays as occurred more than six years before the commencement of the suit, is, of course, barred. .But such damage as has been occasioned by inexcusable delays within that time, may, we think, be recovered. Such, in substance, was the ruling of the judge who presided at the trial. We think the ruling was correct.

Exceptions overruled. Judgment on the verdict.

Appleton, C. J., Barrows, Virgin, Libby and Symonds, JJ., concurred.