Southern Ry. Co v. Leake
| Decision Date | 13 November 1924 |
| Citation | 125 S.E. 314 |
| Court | Virginia Supreme Court |
| Parties | SOUTHERN RY. CO. v. LEAKE et al. |
Error to Circuit Court, Amherst County.
Action by J. Jordan Leake and another against the Southern Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.
J. T. Coleman, Jr., of Lynchburg, for plaintiff in error.
Volney E. Howard, of Lynchburg, and Wm. Kinckle Allen, of Amherst, for defendants in error.
This case is so much like Southern Railway Company v. Watts, 134 Va. 503, 114 S. E. 736, that we might be justified in contenting ourselves with saying that it is thereby controlled. Inasmuch, however, as the attorney for the company vigorously and insistently urges us to reconsider and overrule that case, it may be proper for us to say more. Upon such reconsideration of that case, we are fully confirmed in the views there so well expressed and supported by reason and the authorities therein cited.
The pertinent facts are, that the railway company, in the construction of its double tracks, changed the course of Rutledge creek just as it left the land now owned by Leake and Buford, and ran from that point on its own right of way from the northern side of its track, under it and through an ample culvert, to the southern side of the track. The company closed this culvert, and this made it necessary to supply a new channel for the creek at that point. This was done by diverting its course upon the right of way of the company, and confining it there to the north side of its double track, as a substitute for the old channel. All of the water of the creek, which had theretofore passed away from the lands of the plaintiffs to the other side of the railway tract, was thus forced into the new channel upon the north side of the railway embankment adjacent to their lands. The plaintiffs, Leake and Buford, recovered upon the claim that the market value of their land has been thereby seriously and permanently impaired.
The chief controversy is as to the stat-ute of limitations, the company claiming that as the railway embankment is permanent and was completed in 1914, while the action was not brought until November 30, 1920, it is barred by the five-year limitation.
The evidence for the plaintiffs clearly shows that the damage to the land was not immediate and not perceptible until the year 191G, or 1917.
The issues are, then, identical with those raised in the Watts Case, and the issues of fact are concluded by the verdict. For the railroad company it is claimed that as the structure was and is permanent, the right of action immediately accrued upon its completion, and as five years had elapsed before the action was instituted, it is barred; whereas, on the other hand, the plaintiffs claim that as there was no damage, or none which could be appreciated or proved, until 1916, or 1917, therefore the right of action then first accrued, and that the plea of the statute of limitations cannot therefore be maintained by the company.
Supplementing the citations in the Watts Case by the note to Mast v. Sapp, 5 L. R. A. (N. S.) 379 (140 N. C. 535, 53 S. E. 350, 111 Am. St. Rep. 864, 6 Ann. Cas. 384), it is seen that additional authority is not lacking. Undoubtedly where there is a permanent structure, causing immediate damage to real estate, the cause of action at once arises; but where the damage to the real estate arises from a cause not then immediately effective, then a different principle is applicable and the cause of action does not arise until the injury can be shown. The reason and justice of this is perfectly apparent, for a plaintiff who merely feared ultimate damage to his property under such circumstances would invite defeat if he only relied upon his fears and was unable to prove any actual damage. So the courts have formulated the general rule thus: Whenever any injury, however slight it may be, is complete at the time the structure is completed, the cause of action then accrues; but whenever the structure is not legally injurious there is no cause of action until such injurious consequences occur, and it accrues at the time of such consequential injury. If ...
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