Duval v. Atl. Coast Line R. Co

• Decision Date: 05 March 1913
• Citation: 77 S.E. 311,161 N.C. 448
• Parties: DUVAL. v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

77 S.E. 311

161 N.C. 448

DUVAL.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina.

March 5, 1913.

1. Limitation of Actions (§ 55^*)—Accrual of Right of Action—Trespasses.

As a general rule, except as changed by statute with reference to railroads, an injury to land by wrongfully ponding or diverting water thereon is a renewing trespass, and, unless sustained in a manner and for sufficient length of time to establish an easement, the damages accruing within three years before action brought can be recovered, although the injury may have arisen at a more remote period.

[Ed. Note.—For other cases, see Limitation of Actions, Cent Dig. §§ 299-306; Dec. Dig. § 55.*]

2. Limitation of Actions (§ 55*)—Injuries Caused by Flowage—Statutory Provisions.

Lnder Revisal 1905, § 394, subd. 2, providing that actions or proceedings shall not be brought or maintained against railroad companies for damages caused by the construction of the road or repairs thereto unless commenced within five years after the cause of action accrues, and that the jury shall assess the entire amount of damages which the aggrieved party is entitled to recover by reason of the trespass, injuries caused by the failure of a railroad company to provide a culvert under its roadbed sufficient to carry off the water could not be recovered more than five years after the construction of the road; but, if the company subsequently permitted the culvert to become filled with mud and trash increasing the injury to adjoining land, the statute did not apply.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]

Appeal from Superior Court, Jones County; Foushee, Judge.

Action by A. F. Duval against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Civil action to recover damages for wrongfully ponding water on plaintiff's land, by reason of a culvert and defects therein under defendant's roadbed. Tried before his honor, H. A. Foushee, judge, and a jury, at April term, 1912, of superior court of Jones county. The jury rendered the following verdict: "(1) Have the lands and crops of the plaintiffs been damaged by the negligence of the defendant, as alleged in the complaint? Answer: Yes. (2) If so, in what amount? Answer: $200. (3) Is the plaintiffs' cause of action barred by the five-year statute of limitations? Answer: No." Judgment on the verdict, and the defendant excepted and appealed, assigning for error, chiefly, that the court did not rule that, on entire testimony if believed, plaintiff's cause of action was barred by the five-year statute of limitations.

Rouse & Land, of Kinston, for appellant.

D. L. Ward, of New Bern, and J. K. Warren, of Trenton, for appellee.

HOKE, J. (after stating the facts as above). [1] As a general rule, and in suits between parties other than railroads, the injury caused by wrongfully ponding or diverting water on the lands of another, causing damage, is regarded as a renewing rather than a continuing trespass, and, unless sustained in a manner and for sufficient length of time to establish an easement, damages therefore accruing within three years next before action brought can be recovered though the injury may have taken its rise at a more remote period. Roberts v. Baldwin, 155 N. C. 276, 71 S. E. 319, opinion by Associate Justice Allen; and same case, 151 N. C. 407, 66 S. E. 346, opinion by Chief Justice Clark; Spilman v. Navigation Co., 74 N. C. 675.

This doctrine has been changed, in respect to railroads, by statute (Code, § 394), and, as more especially relevant to the facts presented, subdivision 2 of said section provides as follows: "No suit, action or proceeding shall be brought or maintained against any railroad company...