Chicago, Rock Island & Pacific Railway Co. v. Humphreys
155 S.W. 127
Ark.
1913
Check Treatment
.Smith, J.

Without question this culvert was a permanent structure and, equally without question, it became apparent that these lots were made to overflow by the construction'of it as a part of appellant’s road. But upon consideration of the question as to the application of the statute 'of limitations to these overflow cases, the permanency of the structure or obstruction impeding the flow of water is not the controlling question. Indeed, the question can not arise unless the obstruction is of a permanent nature, but its permanency does not of itself determine whether the damages, which result from its erection, are original or recurring. If it is of such a construction as that damage must necessarily result, and the certainty, nature and the extent of this damage may be reasonably ascertained and estimated at the time of its construction; then the damage is original and there can be but a single recovery and the statute of limitation against such cause of action is set in motion on the completion of the obstruction. If it is known merely that damage is probable, or, that even though some damage is certain, the nature and the extent of that damage can not be reasonably known and fairly estimated, but would be only speculative and conjectural; then the statute of limitation is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries. There are many cases in onr reports on this subject and their difficulty consists in the application of the law to the facts of each case. McAlister v. St. L., I. M. & S. Ry. Co., 107 Ark. 65; St. L., I. M. & S. Ry. Co. v. Mackey, 95 Ark. 297; Kelley v. K. C. So. Ry. Co., 92 Ark. 465; Levee District v. Barton, 92 Ark. 406; St. L., I. M. & S. Ry. Co. v. Magness, 93 Ark. 46; C., R. I. & P. Ry. Co. v. McCutchen, 80 Ark. 235; St. L., I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387; Turner v. Overton, 86 Ark. 406; St. L. S. W. Ry. Co. v. Morris, 76 Ark. 542; St. L., I. M. & S. Ry. Gov. Stephens, 72 Ark. 127; St. L., I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360; St. L., I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240; Ry. Co. v. Yarbrough, 56 Ark. 612; Ry. Co. v. Cook, 57 Ark. 387; Bentonville Ry. v. Baker, 45 Ark. 252; Springfield & Memphis Ry. v. Henry, 44 Ark. 360; Springfield & Memphis Ry. v. Rhea, 44 Ark. 258; L. R. & F. S. Ry. Co. v. Chapman, 39 Ark. 463; St. L., I. M. & S. Ry. Co. v. Morris, 35 Ark. 622.

Under the facts here stated there is no such difficulty in this case. It was known after the first rain that the culvert was insufficient and would cause the land to overflow, the depth of this overflow was indicated by the high water marks and was observed by the residents of that locality. These considerations determined the value of the land and the difference in this value before and after the construction of the culvert measured the damages which the land owner should recover.

If the owner of the land was barred, the appellees as tenants were. This feature of the case is very similar to the case of Board of Directors, St. Francis Levee District v. Barton, 92 Ark. 406. In that case Barton was a tenant in possession of the land which was overflowed, under a lease for a term of years, including the years 1906 and 1907, when the crops were destroyed by the impounded water. The levee which impounded the water and caused the overflow was constructed in 1899 and in holding that that cause of action was barred, the court there said: “It would perhaps be more accurate, instead of saying that plaintiff’s cause of action was barred, to say that the injury done by the construction of the levee in 1899 was a permanent injury to the land, and not to the crops subsequently planted and grown thereon; and, as the plaintiffs did not own the land, and had no interest therein at the time, the injury was inflicted, no cause of action ever arose in their favor.”

So here the railroad was built in 1899 and appellees had no interest in the land damaged at the time the injury was inflicted and consequently they never had a cause of action on account of this obstruction. The judgment is accordingly reversed and the cause dismissed.