Ellerson Floral Co. v. Chesapeake & Ohio Railway Co.
149 Va. 809
Va. Ct. App.
1928
Check Treatment
Holt, J.,

delivered tbe opinion of tbe court.

Plaintiff is a partnership whose business is raising bulbs, etc. Its hot houses are located in a ravine through which runs a small stream with a watershed approximating fifty acres.

Across this ravine is a fill twenty-two feet high, constructed to carry defendant’s roadway. At its bottom is а culvert thirty-six inches in diameter, built to drain away unusual accumulations of water and to care for that ordinarily to be exрected. In June, 1923, there was a very heavy rain in that vicinity. This culvert was inadequate, the water was dammed back, and as a сonsequence 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 vеrdict 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 manifestаtion 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, established for more than fifty years. In that time one-sixth of the average rain-fall for the entire year came down. That this was an extraordinary downpour is immediately apparent, and since these facts are not in dispute, the court might well hold that it was an “act of God,” but the record also shows that this greenhouse was flooded on two previous occasions, once in August, 1917, and again in August, 1920. In other words this record shows that the culvert was not even large еnough to carry off a rain-fall of unusual volume. Had it been so built, we cannot say as a matter of law that it would not have saved the plaintiff harmless in the flood of 1923. Unusual rains are to be expected at times.

It is next said that the five year statute оf 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 statutе begins to run as to them from the time that their inadequacy is first definitely ascertained. With this proposition we have no quarrel.

But аll statements of law are to be read in connection with the facts of the case to which they are to be aрplied.

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 was damaged had stood for nine years. That is to say, this culvert stood for all this period of time without doing anybody any harm, and so the flood which came at the end of this long period of time was not sufficient to put anyone on notice that other floods would continue to recur with certainty. There was nothing to show that another period of twenty years might not pass, or another period of even greater duration, before any additional damage was done, or thаt in fact any additional damage would ever be done. It is true that there was a second flood in 1920, and it may be that this recrudescence of this trouble within this comparatively short time was sufficient evidence to show that the culvert was in fact a рermanent nuisance. If so, the statute would begin to run from this date. On this proposition the court is not in harmony, and so the question here suggested is expressly left open. It is not necessary to decide it in this case. If the statute did begin to run in 1920, then the five year period had not elapsed when the instant action was instituted. ¡

The unco'ntradicted evidence is that the damage sufferеd 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, sectiоn 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 аnd discharge of ■ all claims or causes of action, whatsoever, and ' particularly of all claims or causes оf action arising out of the above account.

“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 Comрany the sum of three hundred dollars, in full settlement, satisfaction, release and discharge of all claims or causes of аction 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 dаtes of their execution.

Since we have reached the conclusion that the plaintiff is entitled to a judgment for $1,365.60, it is unneсessary 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.