Spilman v. Roanoke Navigation Co.

The damage to the plaintiffs’ land, caused by the flooding of water upon it. and sobbing it, from the dilapidated condition of defendants’ canal, may be estimated by comparing the productiveness of the land when flo ded, with its productiveness when not so flooded. An action to recover such damages is not barred by the Statute of Limitations, although the first flooding occurred more than three years before the suit, is brought. (Garrett and wife v. Dabney and others, decided at this term, cited and approved.)

This was a Civil ActioN, for damages, tried at the December (Special) Term, 1875, of Halifax Superior Court, before his Honor, Judge Moore, and a jury, upon the following CASE AGREED. “ The plaintiffs declared for damages to their land, for agri cultural purposes and otherwise, caused by water flooding over it, from the defendant’s canal. The land was valuable for. agricultural purposes. The following issues were submitted to the jury, to-wit: 2d. Has the defendant negligently permitted the canal or any part' thereof to décay, so as to damage the plaintiffs’ land, for agricultural purposes, If so, what is the damage to it, by reason thereof ? (Ans.) We allow $50 a year — making $150 for three years, withoiit interest. 3d. Have any of the damages complained of, for ..agricultural purposes been, committed within three years next before bringing this action? ... ,- What is. the difference, if any, in value of the plaintiffs’ land, from the time the suit was instituted, and three years before that, time ? (Ans.) .'Nothing. There was conflicting evidence as to the condition of the canal, and whether the defendant negligently permitted it to become decayed and ruinous, so as to allow the water from it to damage the land — to which there was no exception. With the view of showing damage to the land for agricultural purposes, the plaintiffs offered to prove, that had not the defendant negligently permitted the water from the canal to ooze through the canal banks and over their lands, by reason of its dilapidated condition, it would have yielded annually, in due course of agriculture, more than it would, with the water percolating from the canal upon it, for three years next before suit brought. Defendant objected to the evidence; but it was admitted by the court. . Plaintiffs then introduced evidence to show, that some of the land was so damaged by the percolation, or flowing of the water, that it could not be cultivated ; and that a portion of it in cultivation' wás ho damaged that it yielded only half a crop.’ That but for the water percolating, or flowing from the canal, the land would have yielded annually much more corn and other products than it did, or could have yielded, with huch percolation, or flowing upon it for three years next before .suit was brought, and to prove also the value of the corn within that time. All this evidence was objected to by defendant, when offered, but admitted by the court. Defendant excepted. There was conflicting evidence as to the condition of the ditches on the land, and whether they were necessary for its proper cultivation. . His Honor charged the jury, that if the water from the canal" damaged the plaintiffs’ land, only by the natural effort of the water to' escapé' from the canal by ordinary percolation through'its banks, thé plaintiffs could not recover; but if they permitted the canal to fall into decay for want of proper repairs, whereby the water escaped and damaged plaintiffs’ land, plaintiffs could recover for such damage as occurred within three years before suit was brought. That in estimating such damage, they should allow the plaintiff for what the land would have yielded in agricultural products for three years, if the defendant had not permitted the water to escape from the canal for want of repairs ; and they might consider the foregoing evidence for that purpose. Yerdict, one hundred and fifty dollars damages. Defendant moved for a new trial; motion overruled. They also moved for judgment non obstante veredicto ; motion refused. They also moved to arrest the judgment, because the court eould render no judgment on the verdict; motion overruled. Judgment for the plaintiffs for one hundred and fifty dollars, and costs. Appeal by defendant.