76 S.W.2d 309 | Ark. | 1934
By complaint and amendment thereto filed by appellant in the Independence County Circuit *1128 Court in September, 1933, against the city of Batesville, Arkansas, it was alleged, in effect: That during the year 1929 the city of Batesville, a city of the second class, caused to be paved, drained and guttered certain streets adjacent to appellant's real property upon which his home is situated in said city; that, because of the gathering of water from a large territory in said city and throwing it into one drainage, thereby diverting and accelerating the flow thereof into insufficient openings, appellant's property was caused to overflow, etc. The complaint continuing alleges:
"That on or about the 12th day of June, 1933, and at other times, and from time to time, and during heavy rains, the surface drainage from a large territory adjacent to Central Avenue, being most of West Batesville east of Central Avenue and a part of the territory west of Central Avenue, has been concentrated at a point adjacent to plaintiff's property by means of the sewers, gutters, and drains aforesaid, and then discharged in a body onto and across plaintiff's property, thereby flooding plaintiff's sidewalks and causing them to collapse; undermining the foundations of his buildings and the retaining walls constructed on his property causing them to collapse; has damaged his buildings by flooding them from time to time; and has washed and eroded his property by the casting of the surface water onto his property as aforesaid in a volume in excess of the capacity of the drain passing through his property.
"Plaintiff states that, because of the continuing and recurring injuries and damages to his property, the value of said property as a business location is lowered; that the rental value of his property is lowered; that his property is rendered much less desirable and valuable as a residence, or for any other use for which said property is reasonably suited. That, because of the injuries aforesaid, the plaintiff verily believes that he has suffered a damaged of twelve hundred and fifty dollars ($1,250), for which said defendant city of Batesville is justly liable.
"Plaintiff further states that the injury complained of is not the construction of the pavement gutters, drains, and sewers along Central Avenue, but is the recurring *1129 damage to said property by the discharge of surface drainage in a mass upon plaintiff's property in a volume in excess of the capacity of the drain passing through his property, thereby causing the damage aforesaid."
The trial court sustained a demurrer to the complaint thus filed, and appellant declined to plead further, whereupon the complaint was dismissed and this appeal follows.
The complaint and amendment thereto were dismissed because they show upon their face that the alleged cause of action was barred by the three year statute of limitations. Crawford Moses' Dig., 6950. Was this error? Our leading case on the question under consideration is St. Louis Iron Mountain Southern Ry. Co. v. Biggs,
The case just referred to fell within the latter clause of the rule. In the subsequent case of St. L. I. M. S. Ry. Co. v. Anderson,
In the subsequent case of Chicago, R. I. P. Ry. Co. v. McCutchen,
"The distinction between the Anderson case and those last cited [Ry. Co. v. Cook,
In the subsequent cases of Board of Directors of St. Francis Levee Dist. v. Barton,
The complaint and amendment thereto under consideration alleged, in effect, that appellant's property was overflowed and damaged because of insufficient openings in the drainage system to carry away the excessive flow of water which falls at certain seasons of the year. It appears therefore that the suit is not grounded upon the theory that the structure was permanent and therefore the damage original, but upon the theory of a partial obstruction which rendered the drainage insufficient at times only, and this dependent upon the seasons and the quantity of rainfall.
We conclude therefore that the trial court erred in sustaining the demurrer to the complaint and amendment thereto, and in dismissing same.
For the error indicated, the case is reversed, and the cause remanded for further proceedings.