Opinion of the court by
Affirming.
The city of Lexington, in November, 1891, improved the roadway of North Broadway in front of the property of appellant, by the construction of * a brick street. This improvement involved the alteration of the graded street, raising it slightly so as to leave the street and the sidewalk about 71/2 inches above appellant’s lot. This suit was brought in October, 1900, against the city, for damages resulting from the inconveniences caused appellant’s tenants and the diminution of the rental value of his property by reason of the’ water being thrown onto his premises from the street, whereas before the change of the street it had been allowed to run down the street, and not onto appellant’s lot. The evidence failed to show that the improvement complained of was in any wise negligent, or deficient in plan or execution. It further showed pretty conclusively that the improvement was a permanent one, .as that term is used in this connection. The court, at the conclusion of appellant’s evidence, directed peremptorily a verdict for the city.
This appeal involves alone the plea of limitation, appellee having interposed the plea of the five-year statute. At common law the judgment of the municipal governing body concerning the grading of its streets and the manner of its being done, so far as1 either was not negligent, was a matter within their discretion. Damages resulting from its proper exercise (that is, its exercise! in the
For appellant it is contended that the act of the city in this instance constituted a continuing nuisance, which
The doctrine underlying the cases of Railroad Co. v. Cornelius, City of Louisville v. Coleburne, and Finley v. City of Williamsburg, supra, is that a continuing nuisance caused by a negligent construction, being susceptible of remedy by repairing the defective premises, gives to the demandant a new cause of action for each successive injury; for it was the duty of the wrongdoer, as it was in his power, to remove the cause of the recurring injuries. His failure to' do so was a new cause of the damage, and therefore a basis for a new right of action therefor at each occurrence. This distinction between the two classes of cases is clearly recognized in Railroad Co. v. Orr, supra.
While it is argued for the appellant that the injury in this case was such as might be remedied by a special system of drainage or sewage at that point, nothing appears in the record to show this fact. No witness testified, to it; nor does it appear what the present system is. The rec
The judgment is affirmed.
Petition for rehearing by appellant overruled.