Austin & Northwestern Railway Co. v. Anderson

COLLARD, Judge.

This action was brought against the appellant September 22,1888, for damages for so constructing its road bed and culverts in 1881 as to change the natural flow of surface water from ordinary rains, cause it to be collected’ in large quantities, and to be carried in large volumes down to and through certain culverts upon plaintiff’s land, submerging it, washing away the soil, remaining on it for long periods of time, and rendering it wholly unfit and worthless for agricultural or other purposes. It is alleged that the injury was done in 1886,1887,.and 1888; that in *432 October, 1886, a cotton crop was so destroyed, and in 1887 and 1888 cotton and corn crops were destroyed by having water from' ordinary rains so carried upon the land.

Defendant contends that all the'damages are barred by the two years statute of limitations, because they are alleged to proceed from the improper construction of the road bed and culverts built more than two years before the suit was brought.

The point is presented here by several assignments of error complaining of the ruling of the court in refusing to sustain special exceptions of defendant to the petition, giving charges, and refusing charges.

The law as applied by the court below allowed plaintiff to recover for all injury occurring within two years prior to the institution of the suit, .and no more. The question is, when did the cause of action accrue, at the time of the erection of the embankment and culverts or at the date of the injury?

Chief Justice Stayton, in the case of Water Works v. Kennedy, 70 Texas, 233 , discusses the question and gives us a rule. He says: “When the act is in itself lawful as to the person who bases an action on injuries subsequently accruing and consequent upon the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury, by which is meant an injury giving cause of action by reason of its being an invasion of plaintiff’s right, then be the damage however slight, limitation will run from the time the wrongful act was committed and will bar an action for any damage resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.”

In that case the action was for damages resulting to a building caused by weakening an arch in placing water pipes in the house. It was held that the plaintiff could have maintained an action at once when the arch was weakened, and having failed to do so for more than two years the action was barred. The weakening of the arch was an immediate injury—an immediate invasion of the rights of the plaintiff.

In Powers v. City, 45 Iowa, 652 , where an action was brought for injury to plaintiff’s land by reason of a ditch dug by the city to carry a running stream of water along the' side of the street, the constant action of the water causing the injury to the plaintiff’s land, it was held that no suit could be maintained until some actual injury to plaintiff was caused by the action of the water resulting from the improper construction of the ditch; but the injury began, the premises began to be injured at a time when it was barred before suit; it was of a permanent and continuous character, and it was held that the damage was original and could have been compensated at the time it first began, the action of the water being a permanent and calculable force. The case distinguishes between *433 a continuing and permanent nuisance and one that depends on contingencies, such as freshets and other forces that are incalculable.

Wood says (Wood on Limitation, 371) the rule in reference to acts amounting to a nuisance is that “Every continuance is a new nuisance for which a fresh action will lie, so that although an action for the damage from the original nuisance may be barred, damages are recoverable for the six years preceding the beginning of the action. * . * * But while this is the rule as to nuisances of a transient character, yet when the original nuisance is of a permanent character, so that the damage inflicted thereby is of a permanent character and goes to the entire destruction of the estate affected thereby, a recovery not only may but must' be had for the entire damage in one action.”

We conclude from the authorities that where a nuisance is permanent and continuing the damages resulting from it should all be estimated in one suit; but where it is not permanent, but depends on accidents and contingences, so that it is of a transient character, successive actions may be brought for injury as it occurs, and that an action for such injury would not be barred by the statute of limitation unless the full period of the statute had run against the special injury before suit. The building of the embankment and the culverts as alleged was not of itself a nuisance; it was no invasion of plaintiff’s rights—they were not put on his land. They become a nuisance only at intervals by diverting water from rainfalls from its usual flow upon plaintiff’s land. The embankment and the culverts were permanent but the nuisance was not; there was no constant .and continuing injury. It may be that where land is destroyed and its value before destruction is recovered as damages, there can be but one recovery. The soil and improvements might be renewed, however, in which case other suits might lie for d'amage to its renewed state. But suppose the land is only injured or the crops occasionally destroyed by rains, the just and rational rule as adopted in this State is that successive actions may be brought for the injuries as they occur. Railway v. Helsley, 62 Texas, 593 . We agree with the court below in its holdings upon this subject.

Appellant consolidates the fourth, fifth, and sixth assignments of error. They are directed to the following paragraph of the court’s charge and the refusal of the court to give special charges asked by defendant: “ The defendant had a right to build its road bed where it did, and if necessary to its proper construction and use to throw up the embankment shown to have been made; but in so doing it was required by law to construct all the necessary culverts and sluices required by the natural lay of the land to prevent surface water from being diverted from its natural and usual course and thrown upon land where it would not otherwise have gone.”

This charge is the law as enacted by statute in this State. Rev. Stats., *434 art. 4171. “It-was intended in this class of cases to furnish a simple rule by which would be avoided the difficulty which has been so often felt in adjusting the rights of persons under the conflicting decisions to which the arguments in this case refer.” Railway v. Helsley, 62 Texas, 593 . “It was intended,” Justice Stayton proceeds to say in the case cited, “thereby to compel railways to construct such culverts or sluices as were necessary-to permit water not confined within water courses to flow after a railway is constructed as it did before, in accordance with the natural lay of the land,” etc. The charge given was but preliminary to other instructions and must be read in connection with them. So read, it was a proper charge. Railway v. Donahoo, 59 Texas, 131 .

In the succeeding .portion of the charge the learned trial judge gave the law applicable to the case. In effect he told the jury that if the embankment and culverts diverted the surface water from its natural and usual course and caused it to flow over plaintiff’s land, and permanently injured the same and destroyed crops, etc., the company would be liable for the injury so caused. The jury were guarded by the charge so as not to include any damage occurring át a time that would be barred by the two years statute of limitations, and they were also "cautioned not to allow “ for any injury, if amr, as would have resulted to the land if the embankment and culvert had not been built by reason of the natural flow of water.”

In estimating damages to crops, in case of such damages, the jury were told that they could “only allow for such injury as was caused by the embankment and culvert causing water to flow on said land which otherwise would not have flowed there.” In addition to this the jury were instructed that if the embankment and culverts diverted the water from its usual course and contributed to damage the land and crops, but it should appear that the damage was caused in part by water falling and running on the land regardless of the embankment and culverts, then the defendant would be liable only for such proportion of the injury as was caused by the embankment; and if the verdict should be for plaintiff, it should be for only the damages occasioned by the embankment and culverts.

The instructions of thecoui't were carefully prepared and guarded every right of defendant.

The defendant complains because the court refused a special charge asked, to the effect that in case the jury should find the land and crops were injured by the water passing through the culverts and sluices, but should also find that such water was less injurious to the whole of the lands and crops than it would have been if the road bed had not been constructed and it had flowed according to the natural lay of the land, the verdict should be for defendant.

Such a charge should not have been given. The act of so constructing the embankment and culverts was wrongful, and it could not be made right by such a consideration. Such a comparison of detriments and *435 betterments are not applicable to cases like this. It might be in a proceeding to condemn land for railroad purposes.

Adopted February 3, 1891.

Appellant complains because the court refused a charge asked, to the effect that if the road bed was constructed so as to let the water pass with as little injury to plaintiff as could be practically done without making the road insecure and unservicable, then the company would not be liable for injury from water action after it left the right of way. This charge is not the law. Defendant was bound to so construct its road as not to divert the natural flow of surface water from its usual course, to the injury of adjacent lands.

The court also refused to give a special instruction asked by defendant, to the effect that if other obstructions on the land or in its neighborhood, not attributable to the einbankinent and culverts, caused the water to flow out of its usual course and damage plaintiff’s land and crops, no verdict could be returned for such damage. Several charges of a similar purport, specifying obstructions and causes that might have been found to have changed the course of the water and turned it on plaintiff’s land to its injury, which should not be charged to defendant in estimating damages, were asked, but the court refused all of them. There was no error in such refusal.' The court had in his general charge given all the law applicable to the case, and sufficiently guarded the jury from finding any damages against defendant except such as resulted from the improper construction of the road bed and culverts, and especially from awarding damages arising from other causes, regardless of the embankment.

We commend the charge of the court, and think there was no error in refusing to give requested charges which only repeated principles embodied clearly in the general charge in so far as they were applicable.

We are of the opinion the judgment of the court below should be affirmed.

Affirmed.