Opinion
(Decided 21 February, 1899.)
DEFENDANT'S APPEAL.
Damages — Act of 1895, Ch. 224 — Statute of Limitations.
1. Previous to the act of 1895, ch. 224, damages, both present and prospective, caused by the construction of a railroad, could be assessed on the demand of either party — and it might be done by a single issue covering both, or by two separate issues. S. c., 118 N.C. 996.
2. Prior to that act, three years was the statutory limitation to such actions for recovery of damages to crops — but an action for permanent damages could only have been defeated by showing 20 years continuous occupation with acquiescence.
3. In actions brought in cases of this kind, since the passage of said act, only permanent damages, i. e., damages once for all, can be recovered; and such actions are barred by the lapse of five years.
ACTION to recover damages for alleged injury to the lands and crops of plaintiff, caused by ponding of water by defendant's roadbed and bridge, tried before Norwood, J., at Fall Term, 1898, of NORTHAMPTON. Defense: General denial and statute of limitations.
Winborne Lawrence and R. B. Peebles for plaintiff.
(36) MacRae Day for defendant.
The court submitted issues both as to the damages to the crops for three years preceding the beginning of the action, and as to permanent damages, i. e., damages to the corpus. The recovery of these last will, of course, be a bar to future action for injury to the crops. The defendant excepted to the submission of an issue as to the past damages. The identical point was presented and decided in this same case on a former appeal ( 118 N.C. 996), where it is said (p. 1009), "And either party . . . may demand that both present and prospective damage may be assessed." This might be done by a single issue covering both, or by two separate issues, as in this case.
The defendant further excepted that the court did not sustain the plea of the statute of limitations. The court below properly admitted proof of damages to crops for three years prior to action brought, and the action as to permanent damages could only have been defeated by showing twenty years continuous occupation, with acquiescence. Parker v. R. R., 119 N.C. 677.
Since Laws 1895, ch. 224, in all actions brought in cases of this kind, only permanent damages, i. e., damages once for all, can be recovered, and such actions are barred by the lapse of five years; but that statute cannot apply to an action like the present, which was brought before the ratification of the statute ( Nichols v. R. R., 120 N.C. 495; Harrell v. R. R., 122 N.C. 822), or in a reasonable time (37) thereafter. Culbreth v. Downing, 121 N.C. 205.
NO ERROR.
Cited: Campbell v. R. R., 159 N.C. 587.