Austin & N. W. Ry. Co. v. Anderson

• Decision Date: 03 February 1891
• Citation: 15 S.W. 484
• Parties: AUSTIN & N. W. RY. CO. v. ANDERSON.
• Court: Texas Supreme Court

15 S.W. 484

AUSTIN & N. W. RY. CO. v. ANDERSON.

Supreme Court of Texas.

February 3, 1891.

Commissioners' decision. Appeal from district court, Travis county.

Fisher & Townes, for appellant. E. T. Moore and Milton White, for appellee.

COLLARD, J.

This action was brought against the appellant, September 22, 1888, for damages for so constructing its roadbed and culverts, in 1881, as to change the natural flow of surface water from ordinary rains, cause it to be collected in large quantities, and to be carried in large volumes down to and through certain culverts upon plaintiff's land, submerging it, washing away the soil, remaining on it for long periods of time, and rendering it wholly unfit and worthless for agricultural or other purposes. It is alleged that the injury was done in 1886, 1887, and 1888; that in October, 1886, a cotton crop was so destroyed; and in 1887 and 1888 cotton and corn crops were destroyed by having water from ordinary rains so carried upon the land. Defendant contends that all the damages are barred by the two-years statute of limitations, because they are alleged to proceed from the improper construction of the road-bed and culverts, built more than two years before the suit was brought. The point is presented here by several assignments of error complaining of the ruling of the court in refusing to sustain special exceptions of defendant to the petition, giving charges, and refusing charges. The law, as applied by the court below, allowed plaintiff to recover for all injury occurring within two years prior to the institution of the suit, and no more. The question is, when did the cause of action accrue, — at the time of the erection of the embankment and culverts, or at the date of the injury? Chief Justice STAYTON, in the case of Water-Works v. Kennedy, 70 Tex. 233, 8 S. W. Rep. 36, discusses the question, and gives us a rule He says: "When the act is in itself lawful as to the person who bases an action on injuries subsequently accruing and consequent upon the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of plaintiff's right, then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damage resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar." In that case the action was for damage resulting to a building caused by cutting away an arch in placing a waterpipe in the house. It was held that the plaintiff could have maintained an action at once when the arch was weakened, and, having failed to do so for more than two years, the action was barred. The weakening of the arch was an immediate injury, an immediate invasion of the right of the plaintiff. In Powers v. City of Council Bluffs, 45 Iowa, 652, where an action was brought for injury to plaintiff's land by reason of a ditch dug by the city to carry a running stream of water along the side of the street, the constant action of the water causing the injury to plaintiff's land, it was held that no suit could be maintained until some actual injury to plaintiff was caused by the action of the water resulting from the improper construction of the ditch. But the injury began; the premises began to be injured at a time when it was barred before suit; it was of a permanent and continuous character; and it was held that the damage was original, and could have been compensated at the time it first began, the action of the water being a permanent and calculable force, — the case distinguished between a continuing and a permanent nuisance, and one that depends on contingencies, such as freshets and other forces, that are incalculable. Wood says (see Wood, Lim. 371) the rule, in reference to acts amounting to a nuisance, "is that every continuance is a new nuisance, for which a fresh action will lie, so that, although an action for the damage from the original nuisance may be barred, damages are recoverable for the six years preceding the bringing of the action. * * * But while this is the rule as to nuisances of a transient character, yet when the original nuisance is of a permanent character, so that the damage inflicted thereby is of a permanent character, and goes to the entire destruction of the estate affected thereby, a recovery not only may but must be had for the entire damage in one action." We conclude from the authorities that, where a nuisance is permanent and continuing, the damages resulting from it should all be estimated in one suit, but where it is not permanent, but depends on accidents and contingencies so that it is...