Turner v. Overton

• Decision Date: 01 June 1908
• Citation: 111 S.W. 270
• Parties: TURNER v. OVERTON et al.
• Court: Arkansas Supreme Court

Page 270

111 S.W. 270

TURNER v. OVERTON et al.

Supreme Court of Arkansas.

June 1, 1908.

Appeal from Circuit Court, Clay County; Frank Smith, Judge.

Action by W. V. Turner against J. H. Overton and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Appellant, W. V. Turner, was, and had been for several years prior to the institution of the present suit, the owner of a 400-acre tract of land east of Greenway, in Clay county, of which 125 acres were cleared and cultivated in 1905. Quick creek runs through his farm from west to east, making many meanderings therein. In the spring of 1902 appellees dug a ditch 2,066 feet long along the section lines above appellant's farm for the purpose of straightening the channel of the creek. When first completed, the ditch was six or seven feet wide at the top, about two feet wide at the bottom, and four or five feet deep. The ditch was designed to take the place of the old bed of the creek, which was very crooked. It did not carry all the waters of the creek until 1905. In January, 1906, the ditch had an average size of 24½ feet in width, and 6 4/10 feet in depth. When first constructed, the ditch was of about the same capacity as the old channel of the creek, but, on account of being straight, its current was much swifter. There were about 12 overflows during the year 1905. The creek overflowed its banks on appellant's land, and the action of the water washed the soil from some of his land and cut deep gullies across other portions of it. The worst part of the overflow and the swiftest current was on that part of appellant's land nearest the outlet of the ditch. Appellant testified that overflows never occurred on that part of his land prior to 1905, and that the land overflowed there when the creek was only half bank full. Appellant brought this suit to recover damages, alleging that the overflow was caused by the construction of the ditch accelerating the flow of the water in the creek. Appellees answered, making a general denial, and pleading the statute of limitations of three years. There was a jury trial and verdict for the appellees. The case is here on appeal.

L. Hunter, Huddleston & Taylor, and Johnson & Burr, for appellant. Moore, Spence & Dudly and Lamb & Caraway, for appellees.

HART, J. (after stating the facts as above).

The appellees have pleaded the statute of limitations of three years in bar of this action. The suit was commenced on the 23d day of December, 1905, and the undisputed testimony shows that the ditch complained of was constructed during the spring of 1902. In the case of St. L., I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, 6 L. R. A. 804, 20 Am. St. Rep. 174, the rule is stated as follows: "Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. * * * But, when such...