147 Tenn. 1 | Tenn. | 1921
delivered the opinion of the Court..
These causes are before us on petitions, for certiorari filed on behalf of the "defendants to have reviewed and
The plaintiffs are the owners as tenants in common of a tract of land of about one hundred acres in Montgomery county, bounded on the north by the Cumberland river. The Louisville & Nashville Railroad was constructed through this land, dividing it into two fields of about equal ■size, the railroad paralleling the river. The land was low bottom land; water falling and flowing on it originally drained by natural flow toward the North to the Cumberland river through or by means of a natural channel. When the i*ailroad was originally constructed it was placed over this natural drainage upon a trestle. Prior to the year 1896 this trestle was removed and an embankment constructed with a culvert therein. The land being low was subject to overflow from the Cumberland river which backed the water through-this culvert to the upper side
That the plaintiffs’ crops were damaged by the overflow of water is not a question of dispute here, and the questions presented in the record arise upon the plea of the defendants to the effect that the embankment on its right of way through the lands adjoining plaintiffs’ land, and the culvert which runs through this embankment, had been constructed and maintained continuously and without interruption for more than twenty years before the damages alleged occurred, and that it had acquired by prescription the right to maintain the embankment and culvert, and consequently the right to overflow the plaintiffs’ land. Therefore the plaintiffs were not entitled to recover for any injuries occurring to their crops by reason thereof.
The fact is established beyond controversy that the railroad company, more than twenty years prior to the institution of these suits, had constructed this particular embankment and culvert, and they had been maintained for a period of more than twenty years in that condition, but it is not conclusively shown that the land was caused to overflow or to have inflicted thereon any positive injury prior to the year 1901, at which time the filling up of the land was first observed.
It necessarily follows from the proof in this case that the cause of the plaintiffs’ injuries was created and placed upon this land more than twenty years before the accrual
“If the enjoyment is consistent with the right of the owner of the tenement, it confers no right in opposition to such ownership. Adverse user is defined as such use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right. It is essential that there be such an invasion of the rights of the party against whom the right is claimed that he would have a cause of action against the intruder, and the prescriptive period does not commence to run until there is such an invasion.” 9 E. C. L., 777. .
The argument made here by the railroad company is that the right of the upper landowner as against the owner of the lower land is merely that the flow of water may not be impeded, and that, inasmuch as the construction of the embankment with an insufficient culvert operated to impede the flow of water, a cause of action immediately arose, and this condition having continued for a period of more than twenty years, the right of the upper landowner has been lost by prescription. This argument is only partially sound. It overlooks the real right of the dominant estate. While his right may be expressed as being one entitling
It is undoubtedly a sound rule of law, and it is in accord with a majority of the cases on that point, that whenever an embankment is of a permanent character, and its construction and maintenance are necessarily an injury, a cause of action at once arises. If no culvert had been constructed in this embankment, all water falling upon this land would necessarily fail to flow and be impeded, and since we know that water does fall and flow and necessarily create an injury, it might well be said that a cause of action arises immediately upon such condition being creatéd. The Mossman Case, supra, is authority for this conclusion. In that case, by the construction of an embankment and its maintenance without .culvert or other means for the passage of water, surface water had been backed upon the plaintiff’s lands, rendering it unfit for agricultural use, and it appeared that the embankment had been constructed thirty years before the suit was brought, and during all of that time the surface water had been backed upon the plaintiff’s land. From this state of facts it was held:
“There arises a presumption that the right to flowage upon the lower lands has been, by grant, surrendered, and
• In the absence of any provision for taking care of the natural flowage of surface water the upper landowner is immediately advised of the adverse nature and claim being made to overflow his lands. The element of adverseness is made to at once appear. It is the immediate assertion of a right adverse to the right of the upper landowner which, if continued for a period of twenty years, becomes complete by prescription.
That is not the case we have before us. The railroad company in the construction of its embankment left an opening which, it has subsequently developed, was insufficient to take care of the natural flow of the water, but by the construction of the culvert the railroad company recognized the right of the upper landowner to have the water flow over the railroad company’s property. We may assume that this opening was insufficient for all kinds of conditions, but the owner of the upper land cannot be expected to know that the culvert was insufficient,1 and he would have no right of action unless he could show that it did necessarily interfere with his rights. Indeed and, in fact this culvert may have been entirely sufficient for the conditions which actually arose immediately and for some years thereafter. It may have been sufficient to take care of the water which accumulated on the upper lands for a period of four or five years. Whether it was or not depends upon the seasons controlling the amount and volume of water. It could not have been foreseen with any degree of accuracy until some actual damage to the property was occasioned thereby that the culvert was insufficient, and
The mere construction of the embankment did not constitute an entry upon the plaintiff’s property; it was oí itself no trespass on or invasion of his rights; it was but use of his own property which became an invasion of the plaintiff’s rights upon the maxim ‘sic utere tuo ut alienum laeclasj” it was but the maintenance of a private nuisance which of course afforded no right of action to plaintiff until actual injury resulted therefrom. As was said by the supreme court of North Carolina in Hocutt v. Wilmington, etc., Railroad, 124 N. C., 214, 32 S. E., 681, wherein it was claimed that the plaintiff was barred by the statute of limitations in an action for damages which resulted from the digging of ditches, the ditches having been dug prior to the period of the statute of limitations, whereas the damages occurred a short period of time before institution of suit:
“It makes no difference when the ditches were dug, provided they did not injure the plaintiffs. The defendant had a perfect right to dig its ditches or use its land as it saw fit, without injury to another. The digging of the ditches, or the building of the road, or any other act done five or twenty or fifty years before, was utterly immaterial to the present controversy, as, in themselves, they constituted no cause of action. While the plaintiff might, under certain circumstances, have enjoined the commission of an act that threatened irreparable injury, he could not have maintained an action for damages that he had not sustained, and might never sustain. It is well settled that the injury
The supreme court of Oklahoma said, in a similar case:
“It strikes us as unreasonable to argue that a cause of action is barred by limitation before it arises. The facts in the case at bar do not disclose that plaintiff ever sustained any damage prior to the overflow complained of, and if the embankment in question, be it ever so negligently constructed, had been maintained for a century, the plaintiff would have had no cause of action for damages sustained until they were sustained; hence his right of action necessarily dated from the date of his injuries.”
In Railroad v. Hays, 11 Lea, 382, 47 Am. Rep., 291, the railroad company relied upon an easement to overflow the lands of the adjacent landowner by reason of having constructed an embankment and maintained it for more than twenty years, but this defense was denied, and the court recognized the principle that to accomplish a prescriptive right the act relied upon must have been done in such a way as not to have recognized the right of the other. It appeared in that case that at the time of the construction of the road a ditch was made which carried off the surface water. Thereby the railroad company recognized and obeyed its obligation to protect the lands from overflow. The rule announced in that case was recognized by this court in the Mossman Case, the court in the latter case saying: “This was a recognition of a servitude in favor of the estate upon a higher level.” Where a railroad company constructs an embankment upon lower land and undertakes to provide a means for the escape of the surface water above, it thereby recognizes its obligation to protect the rights of the owner above it, and it cannot be said that,
The exact question involved and above decided is not presented in any of the reported-cases heretofore decided by this court. The decisions from other States are not uniform, as will appear from examination of the notes published in connection with the case of Gulf, etc., R. Co. v. Moseley, 20 L. R. A. (N. S.), 886, and Irvine v. Oelwein, L. R. A., 1916E, 997, 1074. But the principle of our cases
“Suppose that, in course of time, by natural deposits, as actually happened, the lower land became so filled up that the water would not flow away, and as a result of this defendant in error’s land was flooded. Could the railway company be held responsible? We think not, except to the extent that the higher embankment, raised within the last nine or ten years, caused such backing up. We do not find any evidence in the record that meets this phase of the case. A new situation developing by the filling up of the lower land, the duty was devolved upon the defendant in error either to allow his land to retain the water on the north, or to let it away on the south, by digging a ditch. If the water incommoded the railway company, the duty would be devolved on it to dispose of it by ditches drawing it. away. In other words, under the new status caused by the filling up of the land on the south side of the
In this case the filling up of the land was due to an insufficient culvert, and the right of plaintiff to recover depends upon whether the railroad company had acquired a prescriptive right, and that depends upon the date of the first overflow of the land of the plaintiff by reason of the embankment and culvert that was constructed and the continued maintenance of that condition-for a period of twenty years.
The court of civil appeals reversed the action of the circuit court and remanded these causes, upon the ground .that it was incumbent on the railway company to show that during the twenty-year period prescription claim the owners of the land were capable of contracting an easement, and that they had an estate in the land which the defendant claims to have acquired, and that there was no proof that such was the case.
It is quite true under the rule of law which has frequently been applied by this court that in order to establish a right by prescription the acts by which- it is sought to establish it must operate against persons capable of making a grant; the person owning the estate affected must be in a condition to resist it. Ferrell v. Ferrell, 1
The precise question presented by the assignment of error based upon this conclusion of the court of civil appeals has not heretofore been passed upon in any reported decisions of this court. It has been generally said in some of the cases that it is a part of the complainant’s case to show affirmatively that during the prescriptive period the owners of the servient estate were competent to convey title, and undoubtedly that is true, and in the cases where’ so stated was strictly accurate. Rut it is likewise true that adverse possession under the statute of limitations Avill not confer title where the owner of the land is under disability, and one claiming title by adverse possession must necessarily make out his case by showing the facts necessary to confer title, but it does not follow that a case is not shown in the absence of proof that the owner of the land was not in position to be bound by the adverse user. The necessary facts as to the use of the property for the prescribed period of time being shown, we might well presume that the owners of the property were sui juris and . possessed of such title as could be acquired by adverse user. ’ We have consistently held, in dealing with the statute of limitations, that the burden of proof to establish an exception to the operation of the statute is upon him who asserts it. The exception must even be pleaded. A right by prescription is so similar to one acquired,under the statute of limitations that we are of opinion the same procedure should be observed, and, where it is shown that there has been an adverse user for a period of twenty years, the presumption will be that the owner of the land was
Therefore, in the absence of proof upon the subject, it will be presumed that the owners of the land were in a situation to be bound, and where this prescriptive right is pleaded and the opposite party desires to show that the owners of the land were not sui juris or capable of granting the right, it will be incumbent upon them to plead and prove the fact.
While we do not agree with the ruling on the point last discussed, it results that the decree of the Court of civil appeals will be affirmed and the causes remanded for a new trial, in accordance with principles not inconsistent with this opinion. The costs of the appeal are adjudged against the defendants.