149 Va. 809 | Va. Ct. App. | 1928
delivered tbe opinion of tbe court.
Across this ravine is a fill twenty-two feet high, constructed to carry defendant’s roadway. At its bottom is a culvert thirty-six inches in diameter, built to drain away unusual accumulations of water and to care for that ordinarily to be expected. In June, 1923, there was a very heavy rain in that vicinity. This culvert was inadequate, the water was dammed back, and as a consequence the injuries to growing plants, etc., set out in plaintiff’s motion were suffered. That motion charges the defendant with negligently building this fill, without providing and maintaining, free from obstruction, an adequate waterway. The defendant pleaded the general issue, and filed a special plea setting up the five year statute of limitation (Code 1924, section 5818). In due course the case was submitted to a jury. There was a demurrer to the evidence, and subject to this demurrer the jury returned into court a verdict for the plaintiff in the sum of seven hundred and fifty dollars ($750.00). The demurrer was sustained, and the action dismissed, and this judgment of the trial court is now befo.re us on a writ of error.
One of the defenses relied upon is that the rain on the occasion o'f the injury was so unusual as to amount in law to an “act of God.” “An act of God,” as the term is known to the law, is such an unusual and extraordinary manifestation of the forces of nature that it could not under normal conditions have been anticipated or expected.
During a period of two and a half hours over seven inches of water fell. It was the heaviest rain on record at the Richmond Weather Bureau Station,
It is next said that the five year statute of limitation applies, and in support of this proposition we are cited to many Virginia cases including Virginia Hot Springs Co. v. McCray, 106 Va. 461, 56 S. E. 216, 10 L. R. A. (N. S.) 465, 10 Am. Cas. 179; Southern Railway Company v. McMenamin, 113 Va. 121, 73 S. E. 980; Southern Railway Company v. White, 128 Va. 551, 104 S. E. 865; City of Portsmouth v. Weiss, 145 Va. 94, 133 S. E. 781; and Wright v. City of Richmond, 146 Va. 335, 132 S. E. 707, which hold that obstructions which, with certainty, will cause floods, although at uncertain intervals, constitute permanent nuisances, and that the statute begins to run as to them from the time that their inadequacy is first definitely ascertained. With this proposition we have no quarrel.
But all statements of law are to be read in connection with the facts of the case to which they are to be applied.
Here the flood which first occasioned damage was in July, 1917. At that time this culvert had been standing for twenty years, and the greenhouse which
The unco'ntradicted evidence is that the damage suffered amounted to $1,365.60; the jury’s verdict, subject to a demurrer to the evidence, was for $750.00, which verdict was confirmed by the trial court. To this action plaintiffs excepted, and we think their exception should have been sustained, and that judgment should have been rendered-for the damage shown beyond peradventure to have been suffered, namely, for $1,365.60, with interest. Code, section 6365, and Blake & Company v. Smith, 147 Va. 960, 133 S. E. 685.
For the damage occasioned by the flood of 1917 the railway paid $250.00, the receipt therefor being—
“Received of The Chesapeake and Ohio Railway Company the sum of two hundred and fifty 00/100 dollars, in full compromise, satisfaction and discharge
“Witness my hand and seal this 28th day of July, 1917.
“Ellerson Floral Co. (Seal)
“Frederick Wolstenholme.”
The claim for damages arising out of the flood of 1920 was also settled out of court, the receipt given in that instance being:
“Received of The Chesapeake and Ohio Railway Company the sum of three hundred dollars, in full settlement, satisfaction, release and discharge of all claims or causes of action whatsoever, and particularly of all claims or causes of action arising out of the above account.
“Witness my hand and seal this 28th day of January, 1921.
“McNeill & Bremner,
“Ellerson Floral Co.,
“By E. Wolstenholme.”
These receipts, which are substantially alike, indicate that the railway was of opinion, when they were taken, that the damage inflicted in each instance stood alone, and they do not show that they were regarded as payments for damages which might be suffered after their execution. Fairly construed, they are for damages for injuries suffered at the dates of their execution.
Since we have reached the conclusion that the plaintiff is entitled to a judgment for $1,365.60, it is unnecessary to consider objections made to other rulings of the trial court. Its judgment must be reversed, and this court will now enter such judgment as it should have entered in the beginning.
Reversed.