McCalla v. Louisville & Nashville R. R.

SAYRE, J.

— The railroad company contracted with a certain firm of railroad contractors for tbe construction of tbe Skelton Creek extension of its road. Tbe contractors sublet a part of tbe work to plaintiffs, including therein the construction of a concrete pier in tbe bed of the Locust fork of tbe Warrior river. Tbe subcontractors contracted with reference to tbe then condition of tbe bed of tbe river. Thereafter tbe defendant company caused a mass of rock to be blasted from a bluff overhanging tbe river, so that tbe detached rock fell upon tbe proposed site of tbe pier, greatly enhancing tbe cost of preparing the necessary foundation. This was in April or May, 1906. Plaintiff’s began their efforts to secure a foundation for tbe pier in tbe latter days of August thereafter. Tbe pier was gotten above low water in January, 1907. During February it was raised 30 and odd feet above tbe water. In April, 1907, it was finished. Suit was brought March 23, 1908. At the conclusion of the evidence tbe trial court excluded tbe plaintiffs’ evidence and gave tbe general affirmative charge for tbe defendant. The arguments of counsel on either side indicate that this was done on tbe theory that plaintiff’s evidence established tbe defendant’s plea of tbe statute of limitation of one year. We will so consider tbe case.

Let it be conceded that tbe relation of tbe railroad company to tbe plaintiffs and to the property was such that a cause of action in favor of tbe plaintiffs would arise out of tbe defendant’s act at some time. When did it arise, and when did tbe statute begin to run? Ap *109 pellants contend that it began -to run in April, 1907, as- ' signing its beginning to that time for the reason that then the additional cost of building the pier, imposed by the act of defendant, was first ascertainable. Defendant, for its part, contends that the cause of action arose upon the act of blasting the rocli into the river. That a ■ cause of action accrued to plaintiffs upon the performance of the act complained'of does not seem to admit of serious question.' Then their right was invaded. Then the injury became certain and was finished. There was no contingency, upon the happening or failure of which the right of action depended. That was the malfeasance from which the statute must date. — Snedicor v. Davis, 17 Ala. 472 ; Governor v. Gordon, 15 Ala. 72 ; Mardis v. Shackleford, 4 Ala. 498 . No sufficient reason is suggested why the running of the statute should be postponed to such time as the plaintiffs could demonstrate their loss and damage by completing their contract under the conditions of increased difficulty and cost. That would make the operation of the statute to. depend upon the option of the plaintiffs, and upon their ability to prove their damage, rather than upon the fact that there has been an invasion of. their right. But in truth the quantum of plaintiff’s- damage was no more capable of exact ascertainment after the completion of the pier than it was immediately after the rock was thrown into the river. The difference in the cost of constructing the pier under the conditions existing before and after that event would be, not indeed the measure of plaiptiffs’ damages but an element necessarily entering into the computation. In other words, whether the suit had been brought before or after the construction of the pier, one member of the comparison must have been proven by inference and opinion, and without the aid of that practical demonstration in experience which *110 appellants urge as a condition precedent to the running of the statute. The reason urged in hehalf of appellants’ contention is not only insufficient to work an exception to the general rule that the running of.the statute is not delayed until plaintiff can get sufficient evidence to maintain his action, but it fails as a mere rule of convenience.

Appellants rely upon a class of cases in which the cause of action has been ruled to arise when the wrong results in an interference with the utility or enjoyment of property. They cite Roundtree v. Brantley, 34 Ala. 544 , 73 Am. Dec. 470 ; Polly v. McCall, 37 Ala. 29, Wright v. Moore, 38 Ala. 593 , 82 Am. Dec. 731 ; Eagle & Phoenix Mfg. Co. v. Gibson, 62 Ala. 369 ; Hurtsville v. Ewing, 116 Ala. 576 , 22 South. 984 ; Sloss-Sheffield Co. v. Sampson, 158 Ala 590, 48 South. 493 , and West Pratt Coal Co. v. Dorman, 161 Ala. 389 , 49 South. 849 , from among cases decided in this court. Those were all cases in which damages claimed arose out of wrongs which were nuisances. In the last named of them we quoted definitions of nuisance from our antecedent cases and from B;lackstone'’s Commentaries. In line with these definitions it may further be said that, strictly speaking, no action can be maintained for a private nuisance, except as it affects the comfortable enjoyment of private property. — Ellis v. Kansas City, etc., R. R. Co., 63 Mo. 131 , 21 Am. Rep. 436 ; Kavanagh v. Barber, 131 N. Y. 211 , 30 N. E. 235 , 15 L. R. A. 689. Certainly no definition of nuisance can be extended to the inclusion of everything done to the injury of rights of another not connected with lands, tenements, and hereditaments. There is a wide difference between tort, constituting an invasion of personal or contract right and nuisance. The former expends its force in one act, although injurious consequences may be of lasting dura *111 tion. A nuisance involves the idea of continuity or re currence. — S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266 . Clearly the wrong of which plaintiffs complain cannot be referred to that class of cases which they cite. As well we might classify an assault and battery as a nuisance.

In results, as we think, that appellants’ right of action accrued, and the statute of limitations commenced to run, when the defendant interfered with the exercise of their righf to execute their contract by causing the rock to be thrown into the river. That was more than one year before action was brought. The judgment of the court below is therefore affirmed.'

Affirmed.

Dowdell, C. J., and Anderson and Evans; JJ,, concur.