Parker v. Norfolk & Carolina Railroad

Avery, J. : There was no error in the ruling of the court-that the plaintiff’s right of action was not barred *685 by the Statute of Limitations. The plaintiff had no cause of action if the defendant’s ditches and drains were constructed skillfully and with a due regard for the right of the owners of adjacent lands. Adams v. Railroad, 110 N. C., 325; Ridley v. R. Co., 118 N. C., 996. It could only acquire the prescriptive right to pond water on the plaintiff’s land by subjecting itself to an action for the injury continuously for twenty years. Emery v. R. Co., 102 N. C., 209, at p. 232 ; Sherlook, v. R. Co., 115 Ind., 22 ; 1 Wood, Lim., Sec. 182, p. 466. Until by acquiescence in such continuous occupation for twenty years the presumption of a grant arises, an action will always lie for damage. The plaintiff may elect to claim only the damage sustained up to the trial of the action, and if the defendant fail to ask in his answer for the assessment of prospective as well as present damages, the bar of the statute will not prevent a recovery for that sustained within three years prior to the issuing of the summons. Sherrill v. Connor, 107 N. C., 630; 1 Wood on Nuisance, Sec. 180. If, however, the "plaintiff fail to declare for permanent damage, the defendant at his option may demand that the assessment shall extend to prospective injury, or by silence acquiesce in the finding only of what may have accrued up to the time of trial. Ridley’s case, supra. The right of action accrues in such cases when the first injury is sustained (Ridley’s case, p. 1010) and cannot be defeated by pleading the statute, except by showing twenty years continuous user. Emery v. Railroad, supra. It being manifest that the Statute of Limitations was in no aspect of the testimony an available defense, the next question that arises is whether the judge erred .in his instruction as to the measure of damages. He told the jury in substance that if the defendant in constructing its road-bed had negligently diverted the waters of Elat *686 Pocosin and Long pond Pocosin front their natural outlets, and by that means had caused the overflow complained of, the plaintiff would be entitled, in any aspect of the evidence, to recover .the difference between the value of the land “ before the road was built and the value after the road was built.” The plaintiff had complained that, “by reason of the negligent, wrongful, unlawful and careless cutting of said ditches and the negligent and unlawful diverting of the course of said water, the plaintiff’s farm, by said repeated overflows, has been rendered sour and sobbed, and its fertility destroyed and rendered unfit for agricultural pv/rposesT It is a well-settled principle of pleading, under our Code system, that th,e right to a particular kind of relief depends not upon the specific demand for it in the prayer, but upon the facts alleged in the complaint or counter-claim and proved upon the trial. The allegation of facts that entitles a party to affirmative relief under our liberal system of pleading is equivalent to a formal demand for such relief or a general prayer that would have been embraced under the rules of practice in Courts of Equity. Stokes v. Taylor, 104 N. C., 394; Harris v. Sneeden, Ibid., 369; Roberson v. Morgan, 118 N. C., 991; Holden v. Warren, Ibid. 326. Under the rule laid down in these authorities it was not error to hold that the allegation that the fertility of plaintiff’s land was destroyed, and that it was rendered wholly unfit for agricultural purposes, should be construed as a demand for permanent damages, and constituted notice to the defendant to meet the proof that might be offered to establish the truth of the claim. The defendant had requested the court to instruct the jury that, if the plaintiff had shown that the land was rendered unfit for cultivation, the plaintiff could recover only permanent damage, and that the right of *687 action accrued when the road was first constructed, and was therefore barred. While the judge correctly held that the assessment should embrace past as well as prospective injury, he.was in error when he told the jury that the plaintiff was entitled to recover for all of the diminution in the value of the land caused by the construction of the road, ignoring the fact that compensation had already been made in the purchase of the right of way for any damage that would result from draining the road-bed and cutting proper drains, provided ordinary care was exercised in doing the work. Fleming v. Railroad Co., 115 N. C., 676. The true measure of permanant damage, as held in Ridley v. Railroad, 118 N. C., 996 at p. 1009, “was the difference in the value of plaintiff’s land in its condition when the right of action accrued and what, would have been its value had the road been skillfully constructed.” For the misdirection of the jury as to the measure of damages there must be a new trial. But we deem it best to pass upon the only remaining assignment of error, since the same question will almost certainly be again raised in the court below. The authority to divert surface water from a drain through which it previously made its way to its natural outlet, with the proviso that it is carried in the side-ditches either directly to its natural 'outlet or to a natural outlet capable of receiving it, is included in the easement acquired by the unrestricted grant or condemnation of the right of way. Fleming v. Railroad Co., supra, at pp. 693, 698 ; Staton v. Railroad Co., 109 N. C., 337; Gould on Waters, Section 273. A railroad company enjoys, as to its right of way, the same privilege as any other landowner, and is subject to the same restrictions and qualifications in carrying off or diverting accumulations of surface water. Jenkins v. *688 Railroad Co., 110 N. C., 438. It follows that there is no merit in the exception to that portion of the charge relating to the diversion of surface water by the negligent and unskillful cutting of side-ditches. If the lands of the plaintiff were overflowed and damaged by reason of such diversion of surface water from its natural outlet, without taking it to an adequate outlet, he was entitled to recover permanent damages undei the rule already laid down. New Trial.