140 Va. 438 | Va. | 1924
delivered the opinion of the court.
This case is so much like Southern Railway Company v. Watts, 134 Va. 503, 114 S. E. 736, that we might be justified in contenting ourselves with saying that it is thereby controlled. Inasmuch, however, as the attorney for the company vigorously and insistently urges us to reconsider and overrule that case, it may be proper for us to say more. Upon such reconsideration of that case, we are fully confirmed in the views there so well expressed and supported by reason and the authorities therein cited.
The pertinent facts are, that the railway company, in the construction of its double tracks, changed the course of Rutledge creek just as it left the land now
The chief controversy is as to the statute of limitations, the company claiming that as the railway embankment is permanent and was completed in 1914, while the action was not brought until November 30, 1920, it is barred by the five year limitation.
The evidence for the plaintiffs clearly shows that the damage to the lands was not immediate and not perceptible until the year 1916, or 1917.
The issues are, then, identical with those raised in the Watts Case, and the issues of fact are concluded by the verdict. For the railroad company it is claimed that as the structure was and is permanent, the right of action immediately accrued upon its completion, and as five years had elapsed before the action was instituted, it is barred; whereas, on the other hand, the plaintiffs claim that as there was no damage, or none which could be appreciated or proved, until 1916, or 1917, therefore the right of action then first accrued,
Supplementing the citations in the Watts Case by the note to Mast v. Sapp, 5 L. R. A. (N. S.) 379, (140 N. C. 535, 53 S. E. 350, 111 Am. St. Rep. 864, 6 Ann. Cas. 384), it is seen that additional authority is not lacking. Undoubtedly where there is a permanent structure, causing immediate damage to real estate, the cause of action at once arises, but where the damage to the real estate arises from a cause not then immediately effective, then a different principle is applicable and the cause of action does not arise until the injury can be shown. The reason and justice of this is perfectly apparent, for a plaintiff who merely feared ultimate damage to his property under such circumstances would invite defeat if he only relied upon his fears and was unable to prove any actual damage. So the courts have formulated the general rule thus: Whenever any injury, however slight it may be, is complete at the time the structure is completed, the ■cause of action then accrues; but whenever the structure is not legally injurious there is no cause of action until such injurious consequences occur, and it accrues at the time of such consequential injury. If the act complained of is perfectly lawful, so far as concerns the person who alleges such an injury to his property, the cause of action does not accrue until he can show that such injury has been sustained. Bank of Hartford Co. v. Waterman, 26 Conn. 324; Houston Waterworks v. Kennedy, 70 Tex. 233, 8 S. W. 36.
In Savannah A. & M. R. Co. v. Buford, 106 Ala. 303, 17 So. 395 (an action for damages for obstructing the flow of surface water by the construction of a railway embankment), the principle is thus stated: “If the thing complained of is not necessarily injurious,
It is thus expressed in Sterrett v. Northport Min. & Smelting Co., 30 Wash. 164, 70 Pac. 266: “An action to recover damages for an injury cannot be sustained until the injury actually occurs, although it may be apparent that injury will inevitably result. A cause of action to prevent the injury by injunctive relief might exist, but a cause of action to recover damages commences to run from the time the damages occur by the injury or destruction of property claimed to have been, damaged.”
It is also maintained in New York, etc., R. Co. v. Hamlet Hay Co., 149 Ind. 344, 47 N. E. 1060, 49 N. E. 269, in which the natural flow of a river was obstructed, by a railway embankment, and the complainant did not own the land at the time of its construction.
Other citations might be made to sustain this view,, but those here cited, together with those cited in the Watts Case, show that there is ample authority .therefor. That it is based upon sound reason and common justice, and therefore needs no other support, is also apparent. These principles were enforced by the trial judge, and we do not doubt that they are perfectly sound.
This main question was raised by the instructions-given and refused, and by motion to set aside the verdict of the jury. The court was consistent in its rulings, fairly submitted all questions of fact to the jury and denied the company no substantial right.
It is objected that the court excluded from the-consideration of the jury as evidence a commissioner’s-report of the sale of the property, which occurred in.
Another exception is that the plaintiffs were allowed to amend the declaration after all of the evidence on behalf of the plaintiffs had been introduced. This amendment consisted in striking out of a count in the declaration all reference to an assignment of the right of action, if any, which existed at the time the ■plaintiffs acquired the title from the commissioner of the court. The reasons actuating the plaintiffs being that they had withdrawn the evidence of such assignment and relied solely on their testimony which tended to show that the land had sustained no damage at that time, so that they were not dependent upon any such assignment of the right of action. The ■evidence introduced by the plaintiffs, if true, showed that all of the damages to the land occurred after the plaintiffs had acquired the title. The court would have erred if it had refused permission to make this amendment. Section 6104 of the Code expressly provides that “the court may at any time, in furtherance of justice, and upon such terms as it may deem just, permit any pleading to be amended, or material supplemental matter be set forth in amended or supplemental proceedings. The court shall, at every stage of the proceedings, disregard any error or defect which
Following the Watts Case, we find no error in the proceedings.
Affirmed.