Ragan v. City of Thomasville

Pee Cukiam. Defendant, a municipal corporation, constructed a sewerage disposal system in 1912. This action was begun on 17 October, 1927, to recover damages for injuries to plaintiff’s lands and crops caused by the discharge of sewage from said system into a creek which runs through plaintiff’s land. This land is located about two miles from defendant’s septic tank. Plaintiff alleges that defendant’s sewerage system is defective in construction and that it is negligently operated. There was evidence tending to sustain these allegations, and also to sustain plaintiff’s allegations that his land and crops had been injured by defendant’s negligence. Assignments of error based upon defendant’s exceptions pertinent to the first and third issues cannot be sustained. These exceptions are to rulings of the court upon defendant’s objections to evidence offered by plaintiffs, and to the refusal of the court to allow defendant’s motion for judgment as of nonsuit. There was conflict in the evidence with respect to when plaintiff’s cause of action accrued. There was evidence tending to show that the land now owned by plaintiff was injured when defendant’s sewerage disposal system was constructed in 1912, and that the injuries complained of resulted from a continuous trespass on said land, which began more than three years prior to the commencement of this action. There was evidence also tending to show that the first substantial injury to said land occurred within three years prior to the commencement of this action, and that the injuries resulted from trespasses which were irregular, intermittent and variable. The injuries to plaintiff’s lands and crops were caused by the overflow of water from the creek upon plaintiff’s meadow land. The quantity of sewage discharged from defendant’s septic tank into the creek had been gradually and greatly increased by reason of the growth in population of the city of Thomasville within the past few year’s. Neither plaintiff nor defendant prayed that permanent damages be assessed for the taking or appropriation of plaintiff’s land. Under instructions of the court, damages were assessed only for three years next preceding the trial. The contentions of both parties with respect to the answer to the second issue were submitted to the jury, under instructions as to the *262 law, which are supported by authoritative decisions of this Court. Dayton v. Asheville, 185 N. C., 12, 115 S. E., 827; Cardwell v. R. R., 171 N. C., 365, 88 S. E., 495; Barcliff v. R. R., 168 N. C., 268, 84 S. E., 290; Roberts v. Baldwin, 151 N. C., 408, 66 S. E., 346. The jury having found from the evidence that the first substantial injury to plaintiff’s land occurred within three years prior to the commencement of the action, and that the injuries complained of resulted from trespasses which were irregular, intermittent and variable, under proper instructions, answered the second issue as set out in the record. Assignments of error with respect to the trial of the second issue cannot be sustained. The judgment is affirmed. We find No error.