The allegation in the complaint that the fertility of the plaintiff's land was almost wholly destroyed, and thereby rendered unfit for agricultural purposes, was notice to the defendant that the action was for permanent damages (Parker v. R. R., 119 N.C. 677, and cases there cited), and the defendant's prayer for instruction was also based upon such being the nature of the action. The Court, therefore, properly refused to charge, as prayed, and instructed the jury that the action would be barred only by the lapse of twenty years. This was held in Parker v. R. R., supra, which action, like the present, was begun before
chapter 224, Laws 1895, which reduces the limitation for an action (498) against the railroad company "for damages caused by the construction of said road or repairs thereto" to five years, and also requires that the jury "shall assess the entire amount which the party aggrieved is entitled to recover by reason of the trespass on his property." The evident meaning of this act is that hereafter, in all actions against railroads for injuries from construction or repair of the road, the permanent damages must be assessed. It is settled beyond controversy that while the Legislature has the power to extend or reduce the time in which an action may be brought, this is subject to the restriction that when the limitation is shortened "a reasonable time must be given for the commencement of an action before the statute works a bar."Strickland v. Draughan, 91 N.C. 103, and cases there cited; Cooley Const. Lim., 450 (8 Ed.), and cases there cited. This action, having been instituted before the passage of the act, is not affected by it.
No error.
Cited: Culbreth v. Downing, 121 N.C. 206; Harrell v. R. R., 122 N.C. 823;Narron v. R. R., ib., 860, 861; Ridley v. R. R., 124 N.C. 36; Hocuttv. R. R., ib., 218; Lassiter v. R. R., 126 N.C. 513; Geer v. Water Co.,127 N.C. 354; Phillips v. Tel. Co., 130 N.C. 527; Matthews v. Peterson,150 N.C. 133; Graves v. Howard, 159 N.C. 603.