Norfolk & Western Railway Co. v. Hayden

121 Va. 118 | Va. Ct. App. | 1917

Sims, J.,

after making the foregoing statement, delivered the opinion of the court.

It is apparent from the above statement of facts that unless there is something to take this case out of the general rule operating on the subject, if it were conceded that the plaintiff has proved title originally in himself to the land he claims to own (which is controverted and upon this question we do not find it necessary to pass), since the injury of which he complains arose fromi the flooding of his lands by reason of the dam above mentioned — a permanent structure — the cause of action for such injury arose at the time of the first commencement of the injury following the original erection of the dam and the right of action for all such injury, past, present and future was barred by the statute of limitations after the expiration of five years thereafter. (Norfolk County Water Co. v. Etheridge, 120 Va. 379, 91 S. E. 133.) So that when the land claimed to be owned by plaintiff was in the hands of his predecessors in title, over a century ago, as well as since, and while it has been in his own hands, all right of action for all injury aforesaid has been barred many times over by the statute of limitations; unless, as above suggested, there is something to take the case out of the operation of such statute. The plaintiff relies upon the milling acts above referred to to do this. He relies upon the forfeiture penalty of such acts as they are contained in section 1356 of the Code of Virginia 1887 which provides that “* * * if such mill * * * be at any time rendered unfit for use and the rebuilding or repair thereof shall not within two years from the time of such * * * unfitness, be commenced * * * the title to the land so circumstanced shall revert to the former owner, his heirs or assigns and the leave so granted shall then be in force no longer” * * *, to give the plaintiff a right of action which the bill seeks to protect by the injunction prayed for.

The milling act forfeiture provision aforesaid as contained in the 1887 Code of Va. is not retroactive in its form or effect. The same is true of all the preceding mining acts. Hence, if it were considered that the dam in the instant case was built under the milling acts (which fact is controverted and is unnecessary for us to decide) the question of whether the forfeiture provision aforesaid, relied on by the plaintiff, is applicable to the instant case, must be decided by reference to the milling act in force when such dam was built.

Now, as we have seen above, the milling act in force when the dam in the instant case was built, was the February, 1745, statute. The statute provided no forfeiture penalty whatever. Therefore, if it were conceded that the said dam was established or built under such milling act, there is nothing therein to take the case out of the operation of the statute of limitations aforesaid, and the plaintiff is left without any standing in court.

If the dam in the instant case could be considered as having been established or built under a milling act at a later date than the act which was in force from 1745 to October, 1785, even as late as 1811, just prior to its coming into the ownership of Francis Fitzgerald, Sr., or at any date between the enactment of the October, 1785, milling act and September 2, 1811, the forfeiture penalty provision of the last named act would govern the case. That provision, as we have above seen, extended only to the forfeiture of the one acre of land condemned for the abutment of one end of the dam to rest upon. As we have seen, from the statement of facts above, the predecessors in title of the defendant at that time owned the land on both sides of the stream on which the dam was built — as is uncontroverted before us— so that there could have been no condemnation of such one acre of land, and hence no later forfeiture of it, under the milling act of October, 1785.

It was not until the passage of the March 2, 1819, milling act that the further forfeiture penalty provision was enacted that, “* * * the leave granted by the court to erect any such mill * * * or dam shall cease and be void.” This was not retroactive in its purport or effect, as aforesaid. And this was long after the dam in the instant case was erected, as appears beyond all question from the record.

What has been said above proceeds upon the consideration of this cause as if the dam in question was established under the milling acts as aforesaid. The case may be considered from another point of view. The preponderance of the evidence in the cause fails to show that such dam was established under any of such acts. Hence, upon this ground also, the plaintiff has failed in establishing his right to rely upon such acts or any of them to take this case out of the operation of the statute of limitations aforesaid.

Therefore, without considering the many other interesting and important questions in the case, for the reason stated above, we are of opinion that there was error in the decree complained of for which it must be reversed, and this court will enter such decree as the court below should have entered dismissing the plaintiff’s bill.

Reversed.