Earnhardt v. Board of Commissioners

Hoke, J., after stating the case: It is well recognized with us that an abutting owner may not, as a rule, recover damages *236 for diminution in the value of bis property, caused by a duly authorized change of grade in a street which has been already established. Dorsey v. Henderson, 148 N. C., 423; Wolfe v. Pearson, 114 N. C., 621. The position is allowed to prevail on supposition that the municipal authorities shall not proceed or have the work done in an “unskillful or negligent manner,” and where it is shown that there has been a breach of duty in this respect, an action lies. This principle, announced in Meares v. Wilmington, 31 N. C., 73, has been upheld in numerous cases in our Court. Jones v. Henderson, 147 N. C., 120; Wright v. Wilmington, 92 N. C., 156, etc., and was approved and applied in the recent case of Harper v. Lenoir, 152 N. C., 723. On a perusal of the record, we are inclined to the opinion that there was evidence to show, in this instance, a negligent construction of the sidewalk, causing unnecessary damage, to plaintiff’s premises; but this view cannot avail plaintiff, for the reason that, on the face of the complaint and the uncontroverted, facts,- it appears that plaintiff’s cause of action is barred .by the three-year statute of limitations, and the statute having been-duly pleaded, the order of nonsuit should, in any event, be considered and treated as harmless error. Oldham v. Rieger, 145 N. C., 254; Cherry v. Canal Co., 140 N. C., 422. In Harper’s case it was held that the measure of damages, in actions of this character, was ordinarily the impaired and market value of the property, and that, on action brought, recovery should be had for the entire wrong — past, present, and prospective. Speaking to this question and the principle upon which it was properly made to rest, the Court said: “And having been caused by a change of grade, done, as a rule, under statutory authority and considered of a permanent nature, under our decisions there may, and, ordinarily, must be but one recovery for the entire wrong.” This general principle is well stated by Justice Avery in Ridley v. R. R., 118 N. C., 998, as follows: “But even where the injury complained of, either by the servient owner or an adjacent proprietor, is due to the negligent construction of such public works as railways, which it is the policy of the law to encourage, if the injury is permanent and affects the value of the estate} a recovery may be had at law of the entire damages *237 in one action.” Citing Smith v. R. R., 23 W. Va., 453; Troy v. R. R., 3 Foster (N. H.), 83; R. R. v. Maher, 91 Ill., 312; Biger v. R. R., 70 Iowa, 146; Fowle v. R. R., 112 Mass., 334, 338; s. c., 107 Mass., 352; R. R. v. Estorle, 13 Bush (Ky.), 667; R. R. v. Combs, 10 Bushy (Ky.), 382, 383; Stodghill v. R. R., 53 Iowa, 341; Cadle v. R. R., 44 Iowa, 1. And is said by Mr. Elliott, in bis work on Roads and Streets, to obtain very generally in determining tbe damages recoverable on a change of grade by tbe authorities. On tbe subject tbe author says: “Sec. 488. All Damages Are Recoverable in One Action. Tbe change of grade is a permanent matter, and all resulting injury must be recovered for in one action, for tbe property-owner cannot maintain successive actions as each fresh annoyance or injury occurs. Tbe reason for this rule is not far to seek. What is done under color of legislative authority, and is of a permanent nature, works an injury as soon as it is done, if not done as tbe statute requires, and tbe injury which then accrues is, in legal contemplation, all that can accrue, for tbe complainant is not confined to a recovery for past or present damages, but may also recover prospective damages resulting from tbe wrong. It is evident that a .different rule would lead to a multiplicity of actions and produce injustice and confusion. It is in strict harmony with tbe rule which prevails, and has long prevailed,.in eases where property is seized under the right of eminent domain.” It will be noted that this principle of awarding permanent damages for a certain class of injuries, made obligatory as to railroads, Revisal, sec. 394, is placed upon the ground that the work complained of is of a permanent nature, done by virtue of statutory authority and for the public benefit, and is thus differentiated from nuisances maintained by private persons, individual or corporate, and causing recurrent damages, as in Roberts v. Baldwin, 151 N. C., 407, and Spilman v. Navigation Co., 74 N. C., 675; and, further, that an action of this kind is not held to have necessarily accrued only when there has been actual physical interference or invasion of a claimant’s property — the correct position when section 394, subsec. 2, or 395, subsec. 3, applies (Stack v. R. R., 139 N. C., 366) ; but, as shown *238 in Harper’s case, tbe cause of action is for negligence, subject to tbe limitation established in section 395, subsec. 5, and is properly beld to accrue at tbe time tbe work is negligently done and tbe value of claimant’s property thereby sensibly impaired. This action was commenced on 1 September, 1909. On tbe allegations of tbe complaint and tbe uncontroverted facts, tbe work was done and substantial injury caused by tbe negligent construction, commenced in 1904. Tbe plaintiff’s cause of action is therefore clearly barred by lapse of time, and tbe statute having been properly pleaded and insisted on, tbe results of tbe trial should not be disturbed. There is no reversible error, and tbe judgment of nonsuit must be Affirmed.