Pickett Et Ux v. Atl. Coast Line R. Co
| Decision Date | 06 October 1910 |
| Citation | 69 S.E. 8,153 N.C. 148 |
| Court | North Carolina Supreme Court |
| Parties | PICKETT et ux. v. ATLANTIC COAST LINE R. CO. |
1. Evidence (§ 359*) — Photographs—Purpose.
In an action for wrongful diversion of a water course to the injury of plaintiff's land, certain photographs of the premises showing the condition of the land after the diversion of the water after proof of correctness and the manner and time of taking were properly admitted as explanatory of the effect of the diversion of the water.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1511; Dec. Dig. § 359.*]
2. Pleading (§ 248*) — Amendment — New Cause of Action.
Plaintiffs sued for damages to the crops of the feme plaintiff by defendant's alleged wrongful diversion of a water course, and thereafter amended by adding an allegation that the land had been rendered almost worthless for farming purposes and bad been permanently injured, exclusive of the annual damage to the crops. Held, that the cause of action originally stated was the injury to the land and the consequent damage, and that the amendment did not essentially change the cause of action, but merely laid the foundation for recovery of all damages required by Revisal 1905, § 394, subd.
2, to be assessed in the one action.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*]
3. Limitation of Actions (§ 55*)—Injuries to Land—Pleading—Amendment.
Where plaintiff sued a railroad for damage to crops from the diversion of a water course, and before trial amended the complaint by inserting a demand for permanent damages to the land, limitations began to run from the date of the first substantial injury.
[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 305; Dec. Dig. § 55.*]
Appeal from Superior Court, Duplin County; Guion, Judge.
Action by W. F. Pickett and wife against the Atlantic Coast Line Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
Davis & Davis and II. L. Stevens, for appellant.
Rountree & Carr, for appellees.
This action was brought to recover damages for injury to plaintiff's land by the diversion of water caused by the defendant in repairing one of its trestles, whereby the water was turned from its natural course, or that direction in which it was wont to flow, and emptied upon the land of plaintiff, filling the ditches, preventing effective drainage, and flooding the land. The plaintiffs, Annie Pickett and her husband, W. F. Pickett, originally sued for damages to the crops of the feme plaintiff, but on February 21, 1910, by leave of the court, amend-ed their complaint by inserting the following allegation: "That by reason of the acts of the said defendant hereinbefore set out and alleged the said lands of the plaintiffs have been rendered almost worthless for farming purposes and have been permanently injured and damaged, exclusive of the annual damage to crops in the sum of $6,000." They had alleged the damage to crops to be $2,000. Defendant denied that there had been any wrongful diversion of water by it which injured the plaintiffs' land, and pleaded the statute of limitations. Revisal 1905, § 394 (2).
There was much testimony introduced by the parties as to the alleged injury to the land by the diversion of water. Plaintiff introduced in evidence certain photographs of the premises, showing the condition of the land after the diversion of the water. The court, over defendant's objection, permitted these photographs to be used for the purpose of enabling a witness to explain his testimony as to what effect the diversion of the water had upon the land. Preliminary proof was heard as to the correctness of the photographs and as to the time and the manner in which they were made. There was no error in admitting them for the purpose indicated. Wigmore on Evidence, §§ 790. 792; Hampton v. Railroad, 120 N. C. 534, 27 S. E. 96, 35 L R. A. 808; Davis v. Railroad, 136 N. C. 115. 48 S. E. 591.
The defendant contended that, in order to determine whether the statute of limitations barred the plaintiffs' action as to permanent damages, time should be counted to the date of the amendment of the complaint. We do not think the amendment added a new cause of action, but related only to the quantum...
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