Morrow v. Florence Mills

Stacy, J. There are only two material questions presented for decision: 1. Was it error to admit evidence of the alleged nuisance for a longer period than three years next immediately preceding the commencement of the action, in view of the plea of the statute of limitations? His Honor permitted the jury to consider evidence of this character solely on the question of liability and not upon the issue of damages. Under this limitation, and considering the single purpose for which it was admitted, we think the evidence was competent and admissible. 29 Cyc., 1265; Lentz v. Carnegie Bros. & Co., 145 Pa. St., 612. We are not now called upon to say what result would have followed had it not been thus restricted. The authorities elsewhere are conflicting as to whether such evidence may be considered by the jury on the issue of damages. Pickens v. Coal River Boom and T. Co., 24 L. R. A. (N. S.), 354, and cases cited. Evidently the character of the alleged nuisance would have a material bearing on this latter question. But, in the light of the record, we approve his Honor’s ruling in the instant case. 2. Was the defendant, without the consent of the plaintiff, entitled to have the issue of permanent damages submitted to and answered by the jury? This question is dealt with fully in Webb v. Chemical Co., 170 N. C., 662; and, upon authority of that ease, we must affirm the .action of the Superior Court. As said by Mr. Justice Hoke in delivering the opinion: “In cases strictly of private ownership the weight of authority seems to be that separate actions must be brought for the continuing or recurrent wrong, and plaintiff can only recover damages to the time of action commenced. In this State, however, to the time of trial,” citing Ridley v. R. R., 118 N. C., 996; Adams v. R. R., 110 N. C., 325, and other cases. See, also, Brown v. Chemical Co., 165 N. C., 421. From a perusal of the entire record, as bearing upon the defendant’s exceptions and assignments of error, we have discovered no sufficient reason for disturbing the results of the trial. No error.