Norfolk & W. Ry. Co. v. Little
| Decision Date | 24 June 1938 |
| Citation | 274 Ky. 681 |
| Parties | Norfolk & W. Ry. Co. v. Little. |
| Court | United States State Supreme Court — District of Kentucky |
2. Limitation of Actions. — As respects the running of limitations, a cause of action for damages to realty caused by a permanent and properly constructed structure does not necessarily accrue from the completion of the structure but only when injury occurs or when it becomes reasonably apparent to the injured party that injury may occur (Ky. Stats., sec. 2515).
3. Limitation of Actions. — An action for damage to riparian land caused by permanent fill made by railroad along opposite bank of river which diverted waters of river and caused them to flow against land resulting in erosion was barred by five-year statute of limitation where action for damages was not brought until more than eight years after date of letter written by landowner to roadmaster of railroad asking for settlement of damages claimed in petition since cause of action accrued not later than date of letter which showed landowner's knowledge of injury resulting from fill (Ky. Stats., sec. 2515).
Appeal from Lawrence Circuit Court.
W.R. McCOY, W.W. COX and COWDEN & COWDEN for appellant.
CHESLEY A. LYCAN for appellee.
Reversing.
The Norfolk & Western Railway Company, hereinafter referred to as the company, is appealing from a judgment of the Lawrence circuit court recovered by Bill Little as damages to his farm alleged to have been caused by a fill made by the company along the banks of Tug river which diverted the waters of the river and caused them to flow against the lands of the opposite side.
As appears from the record prior to 1925 the company owned and operated single track line of railroad in West Virginia, practically paralleling the river. Appellee's farm abuts the river on the Kentucky side. The fill complained of was made in order that the company might put down double tracks. Formerly the space between the banks of the river and the mountain on the West Virginia side was very narrow. In order to widen it sufficiently for double tracks it was necessary to blast off the mountain side and to make a fill with stone along and near the river bank. The fill was completed in 1925, although there is some evidence that some stone had been dumped along the fill since that time.
Appellee instituted this action on August 31, 1936, alleging in his petition that appellant wrongfully and unlawfully placed and permitted to remain in the river and opposite his farm and upon his farm large quantities of stone, dirt, concrete and other substances causing the bank to slip, break down and go into Tug river, thereby filling up the channel of the river and interfering with and diverting the flow of the waters thereof and causing same to run and flow with unusual and unnatural force against the land of appellee; that as a proximate and direct result thereof the water of the river was caused to cut away and destroy the river bank and farm land for a distance of 2,000 feet to his damage in the sum of $2,750 for which he prayed judgment.
Appellant filed a motion to require appellee to make his petition more definite and certain as to the time at which the injury occurred and as to what point on the property described in the petition injury was done. Thereafter appellee filed an amended petition setting out more in detail the places where the alleged injury occurred and alleged that the erosion of the land had been gradual and from time to time within 5 years prior to the filing of the original petition and that in times of high water the erosion had been faster and more pronounced.
By answer the company made a general denial of the allegations of the petition and...
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