417 S.W.2d 573 | Tenn. Ct. App. | 1966
This action was brought by Maranda Williams against the Southern Railway Company to recover damages to real estate allegedly caused by an earthslide into a railroad cut, made and maintained by the defendant railroad adjacent to the property owned by the plaintiff. On trial, the jury returned a verdict for the plaintiff in the amount of $2500.00. The trial judge, in ruling on motions for new trial, sustained the defendant railroad’s motion and directed a verdict for the'railroad. The plaintiff appealed.
Plaintiff has assigned numerous errors, most of which are directed to various rulings of the trial judge during trial or to the court’s charge. These assignments are not now material in view of the trial judge’s action in directing a verdict for the defendant. The only material assignment, as we see it, is whether there is any material evidence to require the submission of liability on the part of the railroad to the jury and, if so, does the undisputed evidence show plaintiff’s right to recover is barred by either the one year or threé year statute' of limitations.
Evidence of subsidence of plaintiff ’s property and its cause as set forth in the bill of exceptions under consideration is substantially the same as that introduced in the earlier trial of this cause (see Williams v. Southern Railway, 55 Tenn.App. 81, 396 S.W.2d 98), wherein we stated:
‘ t recorc[ does not show the date of construction of plaintiff’s house, but from pictures in the record, it is obvious that it would be classed as an ‘older’ house. [Plaintiff guesses that it is 60 to 65 years old]. The pictures also show that the house sets approximately 50. feet from the edge of the railroad cut.
“In March, 1963, after a heavy rain, there was a large landslide into the railroad cut. As a result, a portion of plaintiff’s property, extending some 6 to 9 feet from the back property line toward the house, fell away to a depth of approximately one foot [now to a depth of 3 feet]. Cracks or faults, indicating the beginning of a slide, appeared some 8-10 feet inside plaintiff’s property line. Further, plaintiff testified that as the result of the slide, the corner of her house cracked and separated, and introduced in evidence a picture showing a crack in an interior concrete block wall, which she attributed to the subsidence of the property.
“Raymond Franklin, a civil engineer employed by Blount County to do ‘the engineering involved with the construction of the county roads.’, was the only witness who undertook to testify as to the cause of the landslide. He stated the slide was ‘due to erosion, that is water slipping over the bank’; [that when the bank became saturated, the dirt slid down the bank, seeking level ground]. ”
As pointed out in the earlier opinion, ‘ ‘ ‘ The liability of an adjoining owner for the removal of lateral support
With these authorities in mind, we are of the opinion expressed in our earlier decision in this cause, that when the above evidence is considered in the light most favorable to the plaintiff, as we are required to do, a jury reasonably could find that the subsidence of plaintiff’s land was the natural and proximate result of the removal of lateral support by the defendant, and that the soil fell of its own weight and pressure under the action of the elements.
The defendant insists that the trial judge was justified in directing a verdict in view of evidence that the defendant railroad had purchased the right-of-way on which the “cut” was constructed from plaintiff’s predecessor in title, it being the contention of the defendant that the injury suffered by plaintiff was “necessarily incident to the proposed improvement” and must have been contemplated by plaintiff’s predecessor in title and
“In Carter County v. Street, [36] Tenn.App. [166], 252 S.W.2d 803, * * * we applied the exception because it appeared the landowner had no information when he executed a deed to the right of way that cuts and fills would be of such magnitude that slides would result in damage to his remaining lands. As supporting that view ihe opinion cites Milhous v. State Highway Department, 194 S.C. 33, 8 S.E.2d 852, 128 A.L.R. 1186, in which the Supreme Court of South Carolina held that a landowner who had never been shown a map of the road construction when he executed a deed to the right of way would not be cut off from water damages caused by grading the roadway in a manner to interfere with natural drainage. ” Morgan County v. Neff, 36 Tenn.App. 407, 256 S.W.2d 61, 63.
Defendant, contending “the right of action in this case accrued either in 1900 or so when the cut was made and the railroad was built or it occurred in March 1963, when the bank caved in, ’ ’ takes the position that the plaintiff is barred from recovering damages .for the subsidence of her land by the one year statute of limitations set out in T.C.A. sec. 23-1424 (the reverse condemnation statute), and that the trial judge’s action in directing a verdict for
We think the instant case is distinguishable from the Central Realty Company case, supra, on the ground that there is no showing that the defendant ever entered or encroached upon the plaintiff’s land, never intentionally appropriated it, and never materially interfered with its use. The damage to plaintiff’s land resulted from an excavation made by the defendant on its own land, and the action of the elements on the bank of the excavation. Under the circumstances, there has been no “taking” of plaintiff’s land by defendant and, as a consequence, T.C.A. sec. 23-1424 is not the controlling statute of limitations. The controlling statute is T.C.A. sec. 28-305, which provides a three year limitation on actions to recover damages to real property (see, Donohue v. East Tenn. Natural Gas Co., 39 Tenn.App. 438, 284 S.W.2d 692), and the statutory period dates from the actual injury rather than from the date of the removal of the lateral support. See Anno. 26 A.L.R. 1235 et seq.; 1 Am.Jur.2d, Adjoining Landowners, Sec. 69, p. 740.
“The decided weight of authority is to the effect that the Statute of Limitations does not begin to run against a cause of action for injury to the surface by removal
The injury to plaintiff’s land giving rise to this.suit occurred in March, 1963. Suit was filed on July 8, 1964, well within the statutory three year period of limitation.
For the reasons above stated, we are of the opinion that the trial judge committed error in directing a verdict for the defendant. The judgment of the trial judge is reversed and the cause remanded.