Board of Directors of St. Francis Levee District v. Barton

• Decision Date: 29 November 1909
• Citation: 123 S.W. 382,92 Ark. 406
• Parties: BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT v. BARTON
• Court: Arkansas Supreme Court

123 S.W. 382

92 Ark. 406

BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT v. BARTON

Supreme Court of Arkansas

November 29, 1909

Appeal from Crittenden Circuit Court; Frank Smith, Judge; reversed.

Judgment reversed and cause dismissed.

H. F Roleson, for appellant.

A railroad company which owns the fee of the right of way may lawfully erect a solid embankment, although the result is to stop the flow of surface water. 31 Am. R. 216; 35 Me. 200; 141 Mass. 174; 38 Am. R. 754; Id. 139; 41 Minn. 384. A canal company, acting under authority of the Legislature is not liable for damages for cutting off the flow of surface water, 2 Johns. 283; 53 Am. R. 581; 21 L. R. A. 593. The action was barred by the statute of limitations. 52 Ark. 240; 62 Ark. 360; 35 Ark. 622; 86 Ark. 406; 20 L. R. A. (N. S.) 894; 88 C. C. A. 236; 161 F. 72.

A. B Shafer, for appellee.

The action was not barred by the statute of limitations. 52 Ark. 240; 32 S.W. 651.

OPINION

MCCULLOCH, C. J.

This is an action at law instituted on April 1, 1908, by Chas. G. Barton and another, partners as Barton Brothers, against Board of Directors of St. Francis Levee District, to recover damages alleged to have been sustained by reason of the construction of a solid embankment across certain lakes and bayous, thereby obstructing the lakes so as to cause water to be impounded in said lakes and bayous, eventually overflowing lands cultivated by plaintiffs. They alleged in substance that they own a lease for term of years (including the years 1906 and 1907) on a farm in Crittenden County, Arkansas, containing about two thousand acres, adjoining the levee constructed by defendant levee district; that prior to the construction of the levee in 1899 water flowing on these lands drained into various sinks, depressions, lakes and bayous near thereto, and finally found its way into Big Lake and Marion Lake, thence through bayous which were natural streams and drains into the Mississippi River; that the levee was constructed and maintained as a solid embankment across these lakes, bayous and natural drains, so as to entirely stop the escape of any water; that afterwards rain water and seep water in great quantities began, on account of said stoppage of the outlets, to become impounded in the lakes and bayous until the year 1906, when, during that year and the year 1907, it encroached upon the lands leased and cultivated by plaintiffs and rendered 600 acres of it unfit for cultivation during those years, and also destroyed and injured crops and made part of the plantation inaccessible. They also alleged that the damages were not at first apparent, and did not become apparent until the spring of 1906, when water began to be impounded in the lakes and bayous on account of the stoppage of the drains.

Defendant answered, admitting that the levee was constructed in the year 1899 as a solid embankment across, the streams, bayous and drains, but alleged that the levee was constructed, and has been constantly maintained, in the best manner known to engineering skill and experience, and that no negligence has been committed in that respect. Among other defenses, the answer alleges that plaintiff's cause of action did not accrue within three years next before the commencement of the action, and the statute of limitation was pleaded.

There was a trial before a jury, which resulted in a verdict and judgment in favor of plaintiffs for the recovery of damages, and defendant appealed.

The levee was constructed in the year 1899 as a solid embankment across all lakes, bayous, streams and drainways of every kind, thus totally and completely obstructing the passage of water into the Mississippi River, and it has been continuously maintained in that condition up to the present time. It was expressly agreed by plaintiffs' counsel during the progress of the trial that the levee was properly constructed, thus eliminating the question of negligence from the case. No change was made in the levee after that time, and defendants have done nothing since the levee was originally constructed in 1899 to cause damage to plaintiffs' lands or crops. Was the right of action barred when this action was commenced in 1908?

Plaintiffs' theory of the case is that, though the levee was constructed as a solid embankment more than three years before the commencement of this action, and thus constituted a total obstruction to drainage, the injury did not become apparent until within a period of less than three years before the action was commenced, and that it was therefore not barred. There was testimony introduced by the plaintiffs tending to support this contention of fact, and the court submitted the case to the jury on that theory.

There is perhaps no subject of the law about which there is a greater conflict of judicial opinion than the one concerning the application of the statute of limitations to injuries of this character, and scarcely any class of cases presents such difficulties for the application of settled principles. This court has, in the case of St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S.W. 331, laid down general rules, which have been steadily adhered to, though, as already stated, the application of those rules in the nature of each case have presented many difficulties. The court there said: " Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. * * * * But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries. In such case the statute of limitations begins to run from the happening of the injury complained of."

In the application of these rules this court has repeatedly held in cases where obstructions to drainage were total and permanent, such as by the building of a solid embankment across a drain, either natural or artificial, that the damage is original, and must be fully compensated in one action. Thus, in St. Louis, I. M. & S. Ry. Co. v Morris, 35 Ark. 622, where "a solid roadbed embankment was built across a wet weather stream which drained an area of several square miles," this court held that the damages were original, and that the action for a recovery thereof must be commenced within three years from the time the embankment was completed. In St. Louis, I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360, 35 S.W. 791, the defendant had closed up a trestle over a ditch near the plaintiffs farm, thereby stopping the drainage of water from the farm, and the court held that the damage was original. In the opinion the court said: "So, in this case the obstruction of the ditch was permanent; that is, it will continue without change from any cause except human labor. The effect of it was to restore the land drained to the condition in which it was before...