Valley Ry. Co. v. Franz

• Decision Date: 15 December 1885
• Citation: 43 Ohio St. 623,4 N.E. 88
• Parties: VALLEY RY. CO. v. FRANZ.
• Court: Ohio Supreme Court

43 Ohio St. 623

4 N.E. 88

VALLEY RY. CO.

v.FRANZ.

Supreme Court of Ohio.

Filed December 15, 1885.

Error to district court of Cuyahoga county.

The original action was brought August 27, 1881, in the court of common pleas against the plaintiff in error, to recover damages the defendant in error claims he sustained through the diversion of the Cuyahoga river from its natural channel. Upon the land of the latter the river made a sharp bend, in form of an ox-bow, the two sides of which were within 150 feet of each other. Across this ox-bow and the land of the plaintiff the Valley Railway was located in 1872. To avoid the construction of two bridges, it become necessary to divert the river. To accomplish that, on November 4, 1874, the railway company proceeded to construct a dam and an artificial channel, on the land of the railway company, across the river from the plaintiff's land, and after the completion of the dam and channel it commenced, in the probate court of the county, appropriation proceedings for the right of way, in which damages were awarded him, the said defendant, and his mother; they being the owners of the land from which the stream was partially diverted, as well as land upon which the road was located. After passing through the artificial channel, the water returned to the old bed of the river, at an obtuse angle to the former channel, and so as to run across the old bed, and against the bank of the river, on the land of Franz. This caused but little damage for some time, as the bank was high and protected by small trees. But the bank and trees were slowly worn away by the stream of water, and the bed of the channel was changed onto the land of Franz. As more and more damage was done, on complaint of Franz, the officers of the railway company frequently promised Franz to protect the property from further damage; but nothing further was ever done by them, and Franz commenced his action for damages. A general demurrer to the amended petition was overruled, an answer was filed, and on trial judgment was rendered for Franz for his damages. A bill of exceptions was filed, and on error the district court affirmed the judgment of the court of common pleas; and plaintiff in error now seeks to reverse that judgment.

[Ohio St. 625]

W. J. Boardman, for plaintiff in error.

Robinson & White, for defendant in error.

FOLLETT, J.

The amended petition shows that the artificial channel was made on the land of the Valley Railway Company on or about the fourth day of November, 1874, and that at that time the running stream was turned against the land owned by Franz, and that such stream afterwards wore away that bank and overflowed the land of Franz. The general demurrer to the amended petition could raise the question of the statute of limitation. Sturges v. Burton, 8 Ohio St. 215. The action was commenced August 27, 1881, and plaintiff in error insists that Rev. St. § 4982, must apply, as more than four years had passed since the stream was changed and flowed against the land. The court overruled this claim and the demurrer. This is the only error claimed that we deem necessary to examine.

Plaintiff in error claims that this petition shows the only act the railway company ever did to cause the injury was done in November, 1874, by changing the channel of the river, and then turning the running stream against the bank; and the plaintiff in error claims that the running water caused the damage, and that the statute limiting actions to four years prvents recovery in this case. The company owned the land through which the channel was cut, and it could divert the river as it did, provided it so used its own that it did not injure another.

When a man commits an act of trespass upon another's land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass. To this extent only is the case of Kansas Pac. Ry. co. v. Mihlman, 17 Kan. 224, cited here; as the court found that the trespass upon complainant's land was a [Ohio St. 626]single completed act. And the same is true of the case of Williams v. Pomeroy Coal Co., 37 Ohio St. 583. But where the act of trespass is a permanent trespass, as the erection of buttresses to support a turnpike road, (as in Holmes v. Wilson, 10 Adol. & E. 503,) or the erection and maintenance of a permanent building, (as in Thompson v. Gibson, 7 Exch. 456,) it may be said to be a continuing trespass or nuisance, for which a cause of action accrues and may be brought at any time until, by adverse use or possession, the trespasser has enforced an adverse claim that has ripened and has become a presumptive right or a valid estate. ‘Where the trustees of a trunpike road built buttresses to support it on the land of A., and A. thereupon sued them and their workmen in trespass for such erection, and accepted money paid into court in full satisfaction of the trespass; held that, after notice to defendants to remove the buttresses, and a refusal to do so, A. might bring another action of trespass against them for keeping and continuing the buttresses on the land, to which the former recovery was no bar.’ Holmes v. Wilson, supra. Also: ‘The defendants were liable for continuing the nuisance, although they had no right to enter upon the land to remove it, and that the action was therefore...