Love v. Postal Telegraph-Cable Co.
John B. Love, Jr. v. Postal Telegraph-Cable Company.
Opinion of the Court
Stacy, C. J.
Tbe action for trespass is barred by tbe tbree-year statute of limitations, C. S., 441 (ss. 3). Tbe applicable provision is tbat actions for continuing trespass upon real property shall be commenced witbin three years from tbe original trespass, i.e., in tbe language of tbe statute: “When the trespass is a continuing one, tbe action shall be commenced witbin three years from tbe original trespass, and not thereafter.”
It was said in Teeter v. Tel. Co., 172 N. C., 783 , 90 S. E., 941 , tbat an action such as tbe present is to be regarded as one for a continuing trespass witbin tbe meaning of tbe law. Hence, for damages incident to tbe original wrong, and for tbat alone, no recovery can be bad after the lapse of three years. But tbe plaintiff also sues for permanent damages, which, on recovery and payment, so far as plaintiff is concerned, would confer on tbe defendant tbe right to maintain its line on plaintiff’s land for an indefinite period with tbe right to enter thereon, when reasonably required, for “tbe planting, repairing, and preservation of its poles and other property.”
Caveness v. R. R., 172 N. C., 305 , 90 S. E., 244 . In short, in its broader aspect, tbe suit is to recover for tbe value of an easement, which can pass to tbe defendant only by grant, condemnation or prescription — this last by adverse possession and continuous user for a period of twenty years.
Teeter v. Tel. Co., supra.
In case of railroads, by C. S., 440, this period has been reduced -to five years, but there being no such statute in respect of telegraph companies, tbe common-law period of twenty years is required.
Geer v. Water Co., 127 N. C., 349 , 37 S. E., 474 .
Tbe awarding of permanent damages would be equivalent to tbe acquisition of an easement by condemnation.
Geer v. Water Co., supra; Query v. Tel. Co., 178 N. C., 639 , 101 S. E., 390 .
Viewing tbe action, then, not simply as one for tbe original trespass, but also to recover permanent damages as compensation for an easement, there was error in allowing tbe defendant’s motion for judgment of nonsuit.
Reversed.
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