Davenport v. Pitt County Drainage Dist. 2

• Decision Date: 29 October 1941
• Docket Number: 309.
• Parties: DAVENPORT v. PITT COUNTY DRAINAGE DIST. NO. 2.
• Court: North Carolina Supreme Court

17 S.E.2d 1

220 N.C. 237

DAVENPORT v. PITT COUNTY DRAINAGE DIST. NO. 2.

No. 309.

Supreme Court of North Carolina

October 29, 1941

The defendant is a drainage district created and existing under and by virtue of Chap. 442, Public Laws 1909, and Chap. 67 Public Laws 1911, and acts amendatory thereof, N.C. Code of 1939 (Michie) Secs. 5312 et seq., and the plaintiff is a landowner in such district.

The complaint alleges that the plaintiff suffered damages by reason of the negligent construction of a canal and by the breach of a continuing contract between the defendant and plaintiff wherein the defendant agreed to cut and maintain a lateral ditch to properly drain plaintiff's lands and to open the mouth of said canal and keep it open, all of which resulted in the plaintiff's lands being flooded, soaked and sogged and his crops being injured.

The answer denies the allegations of negligence and of breach of contract, and pleads the ten and three year statutes of limitations in bar of any recovery by the plaintiff.

When the plaintiff had introduced his evidence and rested his case, the defendant moved for a judgment as in case of nonsuit, C.S. § 567. This motion was allowed as to "all causes of action set up in the complaint, except plaintiff's action for damages to his crops occurring within the three-year period next preceding the commencement of this action." At the conclusion of all the evidence the defendant renewed its motion for judgment as in case of nonsuit of action for damages to crops, which motion was allowed, and from judgment nonsuiting and dismissing the action plaintiff appealed, assigning errors.

J B. James and Julius Brown, both of Greenville, for plaintiff appellant.

F M. Wooten, F. M. Wooten, Jr., and Albion Dunn, all of Greenville, for defendant, appellee.

SCHENCK Justice.

Since the plaintiff took no exception to the Court's ruling at the close of his evidence sustaining defendant's motion for judgment as of nonsuit for "all causes of action set up in the complaint, except plaintiff's action for damages to his crops occurring within the three-year period next preceding the commencement of the action," and since the plaintiff testified "I am not claiming any damages for 1939 and 1937," and since the action was commenced February 23, 1940, we are concerned only with the alleged causes of action in so far as they relate to damages to plaintiff's crops in 1938.

We will first consider the action based upon the alleged negligence of the defendant. The negligence alleged, of which there is any evidence, is the failure to cause the canal to follow the channel of Grindle's Creek, as originally planned, and the stopping of the canal on the lands of the plaintiff, and the failure to keep the mouth of the canal properly cleared out, thereby causing the water to overflow and pond upon the lands of the plaintiff resulting in damages to his crops.

According to plaintiff's own testimony, this overflow and ponding of water on his land commenced immediately after the canal was finished in 1923 and continued practically every year following through 1936, and occurred again in 1938, but did not occur in 1939.

The defendant pleads the three year statute of limitations as a bar to any recovery for damages alleged to have occurred in 1938. Any wrongful or negligent flooding and ponding of water on the plaintiff's lands was a trespass on his real property which originated in 1923 and continued on through 1938, and any cause of action resulting from such a continuing trespass accrued in 1923, and was therefore barred in 1940 when this action was commenced.

When a trespass on real property is a continuing one an action therefor shall be commenced within three years from the original trespass and not thereafter. C.S. § 441(3).

"If we view the negligence or wrongful conduct complained of as a continuing omission of duty toward the plaintiff in permitting the logs, laps, and trestles to remain in the condition described, and a source of probable injury to plaintiff's land by causing obstructions in the river and consequent overflow, in order to repel the bar of the statute of limitations it must affirmatively appear from the evidence that these conditions were under control of the defendant, and the breach of duty with reference thereto had taken place sometime within the period of three years preceding the injury. C.S. § 441. The law will not permit recovery for negligence which has become a fait accompli at a remote time not within the statutory period, although injury may result from it within the period of limitation." Hooper v. Carr Lumber Co., 215 N.C. 308, 1 S.E.2d 818, 820.

We therefore conclude that his Honor's holding that any cause of action bottomed upon the alleged negligence of the defendant was barred by the statute of limitations was correct.

Any cause of action bottomed upon an alleged breach of contract by the defendant is likewise untenable for the reason...