Eells v. Chesapeake & O. Ry. Co.
| Citation | 38 S.E. 479,49 W.Va. 65 |
| Parties | EELLS v. CHESAPEAKE & O. RY. CO. |
| Decision Date | 09 March 1901 |
| Court | Supreme Court of West Virginia |
Syllabus by the Court.
1. Where a railroad bridge changes the current of a stream and injures land of a riparian owner lower down the stream by causing it from time to time, as freshets come, to wash away his land, the injury is not of a permanent nature in law, but intermittent, recurrent, and continuous, and the statute of limitations runs from actual damage by washing, not from the erection of the bridge.
2. Where right by prescription to maintain a railroad bridge and thus change the current of a stream and injure land of a riparian owner below by causing it to wash away his land is claimed, the commencement of time required for the prescription to ripen is, not from the erection of the bridge, but from the first actual damage to the land consequent upon the erection of the bridge.
3. Where a right as to land by prescription is claimed, the period required for the prescription to mature does not begin until some act or fact exists giving the party against whom the prescriptive right is set up cause of action.
Error to circuit court, Kanawha county; F. A. Guthrie, Judge.
Action by Hettie Eells against the Chesapeake & Ohio Railway Company. Verdict for defendant, and plaintiff brings error. Reversed.
John Baker White and Philip G. Walker, for plaintiff in error.
Simms Enslow & Alderson, for defendant in error.
BRANNON P.
Hettie Eells brought an action of trespass on the case in the circuit court of Kanawha county against the Chesapeake & Ohio Railway Company alleging as her cause of action that that company had built a bridge for railroad purposes across a stream, and so constructed its piers and abutments obliquely in the stream that they changed the natural course of the current, and directed it against a certain lot of land of the plaintiff, causing the same to wash away and cave in to a specified extent, and undermining a number of forest and shade trees left there as a protection of the lot as it fronted on said stream. Upon the trial, upon the evidence of both plaintiff and defendant, the court directed the jury to find a verdict for the defendant, and rendered judgment for the defendant, and the plaintiff sued out this writ of error.
I confess that I have encountered considerable difficulty in the consideration of this case. The important question in the case as presented to this court is whether the action is barred by the statute of limitations. The bridge was built in 1870, and this suit was brought in January, 1898. The bridge remained, as to this matter, the same as when built. The question is whether the injury is of that character called a permanent injury, so that the plaintiff must sue at once after the building of the bridge, or at latest from the very first detriment from it to the plaintiff's lot, and recover damages in one action as for a permanent and enduring injury, entire damages for the whole injury, or whether she could sue at any time for the injury as it occurred at intervals, and recover for any damage within five years of its occurrence. The question is whether the injury of the plaintiff in this case, if any exists, is one known in the law as a permanent injury, requiring the action to be brought from the first instance of damage within five years thereafter, or is that injury such as is known in law as recurring, intermittent, and continuous? In the one case the action is barred; in the other it is not. If the injury is in legal aspect, of the latter character, though the bridge was erected in 1870, and remained unchanged, and though the first distinguishable item of damage from it was shortly thereafter, yet the plaintiff could disregard it, and wait silent until the occurrence of another item of damage from freshest happening afterwards, and sue for damage to her lot from that occurrence, and other items of damage, within five years from their happening. We are of the opinion that the injury, if any, is to be classified as intermittent, not permanent. The mere building of the bridge did not cause any injury to the plaintiff. She could not sue for that alone. She could not sue until high water came, and its force was, by reason of that bridge, thrown against her lot, and she received damage therefrom. That damage would be occasional as freshest might come, recurring, intermittent; one freshest doing some damage, another doing additional or greater damage. I shall not discuss this intricate question, and the nice lines of discrimination found in the law of the subject. As I remarked in Henry v. Railroad Co., 40 W.Va. 234, 21 S.E. 863, the lines of thought and demarcation are close, the application of principles to instances difficult, and the authorities variant The cases are very numerous on the subject. I will simply refer to the Henry Case and its citations, and Guinn v. Railroad Co., 46 W.Va. 151, 33 S.E. 87. and Drake v. Railway Co., 63 Iowa 302, 19 N.W. 215. Thus, so far the action is not barred. But counsel for the railroad company introduce another point. They contend that, even though the alleged injury is to be classified not as one of permanent character, but intermittent, yet that time has established the right of the company to continue the bridge in the condition in which it was when built, though it does work damage to the plaintiff on occasions as time passes. They say they have acquired right to do this by prescription. This is a grave question in the case. It is established by many authorities that one man can by prescription gain a right of way over another man's land; that one man can by prescription gain a right to back water or flow water over another man's land by means of a milldam or the like. Many incorporeal rights or easements can be established by prescription. Nichols v. Aylor, 7 Leigh, 546; Field v. Brown, 24 Grat. 74; Coalter...
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