89 P. 599 | Cal. | 1907
A demurrer to an amended complaint was sustained, and on plaintiff's declining to amend judgment was entered in favor of the defendant. From this judgment the plaintiff appeals. *625
The amended complaint was filed on March 23, 1904. It alleged that plaintiff was the owner of a parcel of land in the town of Lompoc, extending along and to the center line of Laurel Avenue, a public highway; that on January 1, 1900, while plaintiff's predecessor in interest was the owner of the property, the defendant, a railroad corporation, without the consent of the owner, and without any condemnation proceedings, had entered upon the part of said land within Laurel Avenue, and laid a railroad track thereon; that ever since said last-named date the defendant had operated its railroad over said track, and occupied said lands within the lines of the street, to the exclusion of the plaintiff, thereby obstructing said street, and depriving the plaintiff of access and approach to the street, and diminishing the value of his premises in the sum of six hundred dollars. The prayer was for judgment for six hundred dollars damages, "or that the defendant be permanently enjoined from operating said railroad along said street."
The demurrer was based on various grounds, but it will not be necessary to consider any but those setting up the bar of the statute of limitations. The principal provisions pleaded in the demurrer were sections 335, 338, subdivision 2, and 339, subdivison 1, of the Code of Civil Procedure.
The complaint alleges a trespass upon plaintiff's land. Under subdivision 2 of section 338 an action for trespass upon real property must be commenced within three years after the accruing of the cause of action. If the cause of action here sued upon accrued at the date of defendant's entry, it would seem to fall within the purview of this statute, since more than four years have elapsed between the date of such entry and the filing of the amended complaint. (The record as presented does not contain the original complaint, nor show the date of its filing. If such original complaint was filed within the three years, it was incumbent upon the appellant, who alleges error, to make that fact appear.)
The appellant seeks to avoid the bar of the statute by the contention that, since the injury complained of (viewing it either as a mere trespass, or as a trespass constituting a nuisance) was in its nature continuing, a new cause of action arose at each moment of its continuance, and that successive actions might be brought, in each of which the plaintiff might *626 recover damages accruing up to the time of the commencement of the action. This rule is properly applicable in cases where the injury or trespass is temporary in character, since in such cases it is not presumed that the wrongful conduct will be continued. The plaintiff, in such cases, can recover only the damages which have accrued up to the institution of the action. (8 Am. Eng. Ency. of Law, 2d ed., p. 684.) It follows that an action may be brought at any time to recover the damages which have accrued within the statutory period, although the original trespass occurred before that period, provided that the plaintiff has not permitted such time to elapse as will vest in the defendant a right by prescription.
On the other hand, where the injury or trespass is of a permanent nature, all damages, past and prospective, are recoverable in one action, and the entire cause of action accrues when the injury is inflicted or the trespass committed. (8 Am.
Eng. Ency. of Law, 2d ed., p. 684.) As this court said in Beronio
v. Southern Pacific Co.,
The injury complained of in this instance is the construction and operation of a steam railroad. The great weight of authority is to the effect that such an act is permanent in its nature, and an action to recover damages for the injury inflicted thereby must be commenced within the statutory period after the original infliction of the injury. (Frankle v. Jackson, 30 Fed. 398; Cityof Denver v. Bayer,
Upon the principle declared in these cases, which we think to be sound, the demurrer was properly sustained. It is true that there are authorities laying down a contrary rule. Prominent among them is a line of New York cases, of which Uline v.Railroad Co,
It may be remarked that the plaintiff himself regarded and treated the injury here alleged as permanent in character. This is shown by the allegation that the acts of the defendant have diminished the value of plaintiff's premises in the sum of six hundred dollars, the amount sought to be recovered. This was evidently intended to show a permanent injury to the land, and not merely damage sustained up to the time of the filing of the complaint.
The fact that an injunction is sought as an alternative to the prayer for damages does not affect the conclusions above reached. The provisions of our code relative to limitation of actions make no distinction between equitable and legal proceedings. (Boyd v.Blankman,
The judgment is affirmed.
*629Shaw, J., and Angellotti, J., concurred.