Rogers v. Oregon-Washington R. & Nav. Co.

• Decision Date: 24 February 1916
• Citation: 28 Idaho 609,156 P. 98
• Court: Idaho Supreme Court
• Parties: HARRY A. ROGERS, as Administrator of the Estate of JOSEPH PAPINEAU, Deceased, Respondent, v. OREGON--WASHINGTON RAILROAD & NAVIGATION COMPANY, a Corporation, Appellant

156 P. 98

28 Idaho 609

HARRY A. ROGERS, as Administrator of the Estate of JOSEPH PAPINEAU, Deceased, Respondent, v. OREGON--WASHINGTON RAILROAD & NAVIGATION COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 24, 1916

PLEADING-STATUTE OF LIMITATIONS-FLOODING OF LANDS-TIME WHEN CAUSE OF ACTION ACCRUES.

1. Under the rules of practice in this state, a statute of limitations may be pleaded either in the demurrer or answer where it appears on the face of the complaint that the cause of action is barred by such statute, and by answer where it does not appear on the face of the complaint that the cause of action is so barred. The plea of the statute of limitations cannot be invoked by general demurrer. (Chemung Min. Co. v. Hanley, 9 Idaho 786, 77 P. 226, cited and approved.)

[As to nature and purpose of statute of limitations, see note in 101 Am.St. 145.]

2. Where a defendant does not plead the statute of limitations as a bar to a cause of action by either demurrer or answer the defense that the cause of action is so barred must be deemed to have been waived, under the provisions of sec 4178, Rev. Codes.

3. Where a railroad constructed a bridge with pile approaches across a river, such pile approaches being filled in with a permanent earth embankment and protected by a shear dam, such structures being entirely on the right of way of the railroad company, and thereafter as a result of such construction it appears during an unusual freshet that the free flow of the river was impeded and the water backed up on the adjoining land of a riparian owner, such owner may recover the actual damage thereby suffered; and his cause of action does not accrue until the injury is sustained, since he is not in a position to prove damages until they have actually occurred.

4. The statute of limitations begins to run in actions for flooding land only when actual damage is sustained from such flooding and not at the time when defendant's dam or other obstruction to the flow of the stream is first constructed.

5. Held, that the trial court committed no error in its rulings upon the admission or exclusion of testimony.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

A. C. Spencer, L. R. Hamblen and Featherstone & Fox, for appellant.

"Whenever a nuisance is of such a character that its continuance is necessarily an injury and when it is of a permanent character, that will continue without change from any cause but human labor, then the damage is an original damage, and may be at once fully compensated." (Troy v. Cheshire R. Co., 23 N.H. 83, 55 Am. Dec. 177; Powers v. Council Bluffs, 45 Iowa 652, 24 Am. Rep. 792; Stodghill v. C. B. & Q. R. Co., 53 Iowa 341, 5 N.W. 495; Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, 59 Am. Rep. 341, 8 N.E. 460; Fowle v. New Haven & N. Co., 107 Mass. 352, 112 Mass. 334, 17 Am. Rep. 106; Turner v. Overton, 86 Ark. 406, 111 S.W. 270; Kansas P. Ry. Co. v. Mihlman, 17 Kan. 224; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 P. 899, 50 L. R. A., N. S., 388; Abilene Light & Water Co. v. Clack (Tex. Civ.), 124 S.W. 201; Chicago, B. & Q. R. Co. v. O'Connor, 42 Neb. 90, 60 N.W. 326; Gulf, C. & S. F. R. Co. v. Mosely, 161 F. 72, 88 C. C. A., 236, 20 L. R. A., N. S., 885, and note; Gould on Waters, sec. 416; 2 Farnham on Waters, sec. 586; 4 Sutherland on Damages, sec. 1042:)

Where damage is caused by a permanent structure, such as a railroad embankment, the damage, being original, belongs to him who is the owner of the land at the time the cause of action arises. (Kakeldy v. Columbia & P. S. R. Co., 37 Wash. 675, 676, 80 P. 205; King v. New York, 102 N.Y. 171, 6 N.E. 395; Dunlap v. Toledo, A. A. etc., Ry. Co., 50 Mich. 470, 15 N.W. 555; Kindred v. Union P. R. Co., 225 U.S. 582, 32 S.Ct. 780, 56 L.Ed. 1216; Board of Directors v. Barton, 92 Ark. 406, 135 Am. St. 191, 123 S.W. 382, 25 L. R. A., N. S., 645; Chicago & Alton R. Co. v. Maher, 91 Ill. 312; Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, 59 Am. Rep. 341, 8 N.E. 460; Boise Valley Construction Co. v. Kroeger, 17 Idaho 384, 105 P. 1070, 28 L. R. A., N. S., 968.)

James A. Wayne, for Respondent.

If it clearly appears from the face of the complaint that the cause of action did not accrue within the statutory time, the plea of the statute should be taken by demurrer. (Chemung Min. Co. v. Hanley, 9 Idaho 786, 77 P. 226.)

But if it does not clearly appear from the face of the complaint that the cause of action is barred by the statute of limitations, then the plea of the statute should be taken by answer. (Chemung Mining Co. v. Hanley, supra.)

And if the statute is not pleaded, either by demurrer or answer, then the objection that the cause of action is barred by the statute of limitations is deemed to have been waived. (Rev. Codes, Sec. 4178. Moulton v. Williams, 6 Idaho 424, 426, 55 P. 1019; Grattan v. Wiggins, 23 Cal. 16; People v. Broadway Wharf Co., 31 Cal. 33; Kelley v. Kriess, 68 Cal. 210, 9 P. 129; Morton v. Bartning, 68 Cal. 306, 9 P. 146; Manning v. Dallas, 73 Cal. 420, 15 P. 34; Frantz v. Idaho Artesian Well & Drilling Co., 5 Idaho 71, 46 P. 1026.)

In each of the following cases the question of whether or not the statute of limitations began to run from the construction of such permanent obstruction or embankment, or whether such statute began to run when actual damages were suffered by the land owner, was directly passed upon by the court, and it was held that the statute did not begin to run until damages were actually suffered: Union Trust Co. v. Cuppy, 26 Kan. 754, 755; Eells v. Chesapeake & O. Ry. Co., 49 W.Va. 65, 87 Am. St. 787, 38 S.E. 479; Lawton v. Seaboard Air Line Ry., 75 S.C. 82, 55 S.E. 128; Pickett v. Atlantic Coast Line R. Co., 153 N.C. 148, 69 S.E. 8; Greeley Irr. Co. v. Von. Trotha, 48 Colo. 12, 108 P. 985; Brisky v. Leavenworth Logging, Boom & Water Co., 68 Wash. 386, 123 P. 519; Atchison, T. & S. F. R. Co. v. Eldridge, 41 Okla. 463, 139 P. 254; Sullens v. Chicago etc. Ry. Co., 74 Iowa 659, 7 Am. St. 501, 38 N.W. 545; Omaha & R. V. R. Co. v. Brown, 29 Neb. 492, 46 N.W. 39; Reed v. Chicago, B. & Q. R. Co., 86 Neb. 54, 124 N.W. 917; New York C. & St. L. R. Co. v. Hamlet Hay Co., 149 Ind. 344, 47 N.E. 1060, 49 N.E. 269.

In purchasing these lands Papineau had no notice that such lands were in any danger of being flooded or otherwise injured by reason of the manner in which defendant was using its right of way. In coming into that neighborhood Papineau had a right to rely upon the principle of law that adjoining property owners would so use their own land as not to work an injury to the lands he was purchasing. And the fact that the fill was already constructed does not bar a recovery by the subsequent purchaser of adjoining lands. (Webb's Pollock on Torts, 497; Van Fossen v. Clark, 113 Iowa 86, 84 N.W. 989, 52 L. R. A. 279; Longley v. McGeoch, 115 Md. 182, 80 A. 843; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 25 Am. St. 595, 20 A. 900, 9 L. R. A. 737; Ingersoll v. Rousseau, 35 Wash. 92, 76 P. 513, 1 Ann. Cas. 35; Richards v. Ohio River R. Co., 56 W.Va. 592, 49 S.E. 385.)

BUDGE, J. Morgan, J., concurring. SULLIVAN, C. J., Dissenting.

OPINION

BUDGE, J.

Respondent, as administrator of the estate of Joseph Papineau, deceased, began this action in the district court to recover damages to a tract of land near Cataldo, alleged to have been suffered during the high water of June, 1913.

The complaint alleges that at the time appellant's predecessor constructed its railway, it built a long bridge across the Coeur d'Alene river about opposite the lands of respondent; that at that time there existed in the Coeur d' Alene river, at that place, two channels, the southerly one being what is known as the main channel and the northerly one being partially dry during low water but taking care of the overflow during high water. The north channel passed through appellant's bridge at the east end and paralleled the railroad track on the north for some distance, while the south channel paralleled the track on the south to a point at the extreme west end of appellant's bridge, where it passed under the same joining the other channel north of the track.

This bridge, as originally constructed, appears in the record to have been about 1,700 feet in length. For approximately 1,500 feet at the easterly end it was constructed upon piles, the open space beneath the railway tracks and the stream being between twelve and fourteen feet in height. The remainder of the bridge was a span over the south or what has been called the main channel of the river.

Some time after the construction of this bridge the railroad company began filling in the easterly end of it, first filling between 400 and 500 feet in 1902. In 1908 an additional 400 or 500 feet was filled.

The complaint further alleges that the result of filling this eastern portion of the bridge was to close the north channel and prevent the waters of the river at times of sudden and great rising thereof, from flowing into and through the north or overflow channel, and that while there still remained a sufficiently large channel to accommodate the waters of said river in times of low water, yet by the cutting off of said north channel the remaining portion of the channel of said river was not large enough to accommodate the waters of the river in high water.

It is further alleged that the waters, at the time of the construction of appellant's bridge, flowed in a direction somewhat toward said bridge, and that after appellant began filling in said bridge, it experienced some difficulty in keeping in...