Ridley v. Seaboard & R.R. Co.

• Decision Date: 19 May 1896
• Citation: 24 S.E. 730,118 N.C. 996
• Parties: RIDLEY v. SEABOARD & R. R. CO.
• Court: North Carolina Supreme Court

24 S.E. 730

118 N.C. 996

RIDLEY v. SEABOARD & R. R. CO.

Supreme Court of North Carolina

May 19, 1896

Appeal from superior court, Northampton county; Graves, Judge.

Action by N. T. Ridley against the Seaboard & Roanoke Railroad Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

The measure of damages recoverable by a landowner for the failure of a railroad company, in constructing its road, to leave between embankments sufficient space for the passage of waters of a stream in case of a rise, is the difference in value of the land with the road constructed as it is, and what would have been its value if the road had been properly constructed.

L. R Watts and MacRae & Day, for appellant.

R. B Peebles, for appellee.

AVERY J.

Ordinarily where a trespass results in a nuisance, not only is the original wrong actionable, but successive suits may be brought for its continuance, in each of which the damages, if apportionable, can be estimated only up to the time when it was brought, in some of the states, but in this state up to the time of trial. 5 Am. & Eng. Enc. Law, 17; Blunt v McCormick, 3 Denio, 283; Bare v. Hoffman, 79 Pa. St. 71; Russell v. Brown, 63 Me. 203. In ordinary transactions between individuals, where the trespass consists in the erection of mere temporary structures that prove to be nuisances, the law presumes that the tort feasor will desist from keeping it up after being once mulcted in damages; but, where he persists in the wrong, permits continued actions to be maintained against him, as an inducement to its removal. Battishill v. Reed, 18 C. B. 696; Bare v. Hoffman, supra; 5 Am. & Eng. Enc. Law. p. 17, note 1. Where the building of a railroad is authorized by law, and is done with reasonable care and skill, it is not a nuisance, and the company is not answerable, after paying the sum assessed or agreed upon by the owner for taking the land occupied for the public use, in any additional damage resulting from the original construction. Adams v. Railroad Co., 110 N.C. 325, 14 S.E. 857; 5 Am. & Eng. Enc. Law, p. 20. But even where the injury complained of, either by the servient owner or an adjacent proprietor, is due to the negligent construction of such public works as railways, which it is the policy of the law to encourage, if the injury is permanent, and affects the value of the estate, a recovery may be had at law of the entire damages in one action. Smith v. Railroad Co., 23 W.Va. 453; Town of Troy v. Cheshire R. Co., 3 Fost. (N. H.) 83; Railroad Co. v. Maher, 91 Ill. 312; Bizer v. Power Co., 70 Iowa, 146, 30 N.W. 172; Fowle v. Railroad Co., 112 Mass. 334, 338; Id., 107 Mass. 352; Railroad Co. v. Esterle, 13 Bush, 667; Railroad Co. v. Combs, 10 Bush, 382, 393; Stodghill v. Railroad Co., 53, Iowa, 341, 5 N.W. 495; Cadle v. Railroad Co., 44 Iowa, 11. The right to recover prospective as well as existing damages in an action depends usually upon the answer to the test question whether the whole injury results from the original tortious act or "from the wrongful continuance of the state of facts produced by those acts." Town of Troy v. Cheshire R. Co., supra. In this case, which has been cited as authority by text writers and many of the courts of the states, the states, the action was brought for damages for the occupation of a street and town bridge by a railway company, and it was conceded that in the sense that the highway was obstructed the company had created a nuisance. The court said: "The railroad is in its nature and design and use a permanent structure, which cannot be assumed to be liable to change. The appropriation of the roadway and materials to the use of the railroad is, therefore, a permanent appropriation. The use of the land set apart to be used as a highway by the railroad company for tracks is a permanent diversion of the property to that new use, and a permanent dispossession of the town of its as the place on which to maintain the highway. The injury done to the town is, then, a permanent injury, at once done by the construction of the railroad, which is dependent upon no contingency of which the law can take notice, and for the injury thus done to them they are entitled to recover at once their reasonable damages." "Injuries caused by permanent structures infringing upon the plaintiff's rights in his land, such as railroad embankments, culverts, bridges, permanent dams, and permanent pollutions of water," says Gould in his work on Waters (section 416), fall within the class where "the plaintiff is required to recover his entire damage, present and prospective." Id. § 582; Duncan v. Sylvester, 24 Me. 482. In Van Orsdol v. Railroad Co., 56 Iowa, 470, 9 N.W. 379, the supreme court of that state held that the negligent failure to construct a railroad skillfully subjected the company to a liability distinct from that arising out of the appropriation of the right of way, and that when the want of care consisted in the omission to build a culvert to carry off the water of a slough, and the diversion of it into another slough, whereby the land of plaintiff was wrongfully injured, the plaintiff could recover damages for the permanent injury done to the land. In the subsequent case of Bizer v. Power Co., 70 Iowa, 147, 30 N.W. 172, the court, citing Van Orsdol's Case, said: "Where an injury is permanent, it is such as is spoken of in the books as original,--that is, as accruing wholly when the wrongful act was done; and is distinguished from an act which is to be regarded as continuing, --that is, an injury, that could and should be terminated, and is to be compensated for strictly with reference to the past, and upon the theory that it would be terminated." Where a railroad company duly authorized by law to construct a railway built an embankment partly on the bed of a river, and thereby changed the current of the stream from its proper course, and caused it to wash away adjacent land, it was held by the supreme court of Massachusetts in Fowle v. Railroad Co., 107 Mass. 354, that a second action, brought to recover damage for the wrongful washing away of more of plaintiff's land, due to the same diversion of the water course, was barred by the judgment in the former action instituted for the same purpose, though several acres of land had been washed away after the judgment in the first and before the bringing of the last action. Gray, J., for the court,. said: "The embankment of the defendant was a permanent structure, which, without any further act except keeping it in repair, must continue to turn the current of the river in such a manner as gradually to wash away the plaintiff's land. For this injury the plaintiff might recover in one action entire damages, not limited to those which had been actually suffered at the date of the writ; and the judgment in one such action is a bar to another like action between the parties for subsequent injuries for the same cause. Town of Troy v. Cheshire R. Co., 3 Fost. (N. H.) 83; Warner v. Bacon, 8 Gray, 397, 402, 405. *** This case is not like one of illegally flowing land by means of a mill dam, when the change is not caused by the mere existence of the dam itself, but by the height at which the water is retained by it. *** Nor is it the case of an action against a grantee who, after notice to remove it, maintains a nuisance erected by his grantor." When the same case came up on appeal again (112 Mass. 334, 338), the court said: "As a general rule, a new action cannot be brought unless there be a new unlawful act, and fresh damage. There is an exception to this rule in cases of nuisance, where damages after action brought are held to be recoverable because every continuance of a nuisance is a new injury, and not merely a new damage. The case at bar is not to be treated strictly, in this respect, as an action for an abatable nuisance. More accurately it is an action against the defendant for the construction of a public work under its charter in such a manner as to cause unnecessary damage by want of reasonable care and skill in its construction. For such an injury the remedy is at common law. And if it results from a cause which is either permanent in its character, or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury." In Smith v. Railroad Co., 23 W. Va., at page 453, the court said: "Where the damages are of a permanent character, and affect the value of the estate, a recovery may be had in a suit at law of the entire damage in one action." The action in that case was brought by an abutting owner against a railway company whose road was constructed along the street in his front, and asking an injunction on the ground that he would otherwise be driven to repeated actions at law. High, in his work on Injunctions (section 602), says: "The construction of a railway in a city is not regarded as a nuisance peruse, and the laying of its track along a public street will not be enjoined on that ground. Nor can a private property owner, abutting upon and owing the fee to the center of a street, enjoin the construction of an ordinary surface railways in the street on the ground of nuisance." The same principle was recognized by this court in Brown v. Railroad Co., 83 N.C. 128, where the court refused an injunction and order of abatement on the ground that the structure complained of (a railway trestle) was being used for the benefit of the public. This was an explicit recognition of the doctrine that no structure erected by a charted railway company, and constantly used by it in serving the public, is to be considered and dealt with as a continuing nuisance because its unskillful and defective construction has injured the land of a...