Tate v. Western Carolina Power Co.

Stacy, C. J. Tbis ease, in its cast" and setting, seems to be without any exact prototype. Consequential damages resulting from an original trespass are sought to be assimilated to compensation for an incidental easement. While form may be immaterial so long as it leads to recovery, nevertheless it becomes important on tbe issue of laches or tbe plea of tbe statute of limitations. Tbe plaintiffs have alleged and say they have offered evidence tending to show a continuing trespass since 1928 as a result of tbe erection of tbe *258 Rhodhiss Dam and Reservoir in 1924-1925, and the consequent retardation of the flow in the upper waters of Lower and Little Creeks. Campbell v. R. R., 159 N.C. 586, 75 S.E. 110. Without discussing the sufficiency of the evidence to support these allegations, we pass to what both sides have elected to consider the battleground of debate. There is neither allegation nor proof of an entry upon the lands of the plaintiffs for the purpose of appropriating them to a public use; nor of ponding water thereon. Duval v. R. R., 161 N.C. 448, 77 S.E. 311. The headwaters of the defendant’s reservoir do not reach within three miles of the plaintiffs’ farms. The complaint sets out a consequential injury or secondary result, and not a direct trespass or a taking as that term is used in the cases, though so designated once or twice in the pleading. The defendant never sought to condemn the lands of the plaintiffs, or to impose an easement thereon, does not want either except as a necessary consequence, and denies that it ever injured or damaged them in any way. Compensation is recoverable for a lawful appropriation, damages for a tort. It is contended, however, that the plaintiffs may waive the tort and sue in contract or assumpsit. Not so, after the bar of the original action, for then there is no actionable tort to waive. Nor would such waiver avail the plaintiffs unless the tort amount to a taking of their property or the imposition of an easement thereon. Query v. Tel. Co., 178 N.C. 639, 101 S.E. 390. The case is not like Love v. Tel. Co., 221 N.C. 469, 20 S.E. 2d 337, or Teeter v. Tel. Co., 172 N.C. 783, 90 S.E. 941, cited by plaintiffs, for in each of these cases there was an entry upon the land of the plaintiff and an appropriation of it to the defendant’s use. Here, the plaintiffs have predicated their action solely on the original construction of the dam and reservoir — structures permanent in nature and erected in the exercise of a gwasi-public franchise. Sample v. Lumber Co., 150 N.C. 160, 63 S.E. 729; Teeter v. Tel. Co., supra. Note, the complaint is limited to “injury and damage” caused by the “construction” of the Rhodhiss Dam and Reservoir and to damages thereafter occurring to plaintiffs’ farms as a direct and proximate result of “the presence of said Rhodhiss Dam,” which dam, it is alleged, was so constructed as to require no “maintenance whatever.” Consequently, no fresh act of injury thereafter occurring has been alleged or is sought to be shown. Caveness v. R. R., 172 N.C. 305, 90 S.E. 244. This eliminates any consideration of ■a renewing, intermittent and recurring trespass. Duval v. R. R., supra; Roberts v. Baldwin, 155 N.C. 276, 71 S.E. 319; Spilman v. Navigation Co., 74 N.C. 675. The plaintiffs have carefully refrained from asking for damages occurring within three years prior to suit brought, Roberts v. Baldwin, 151 N.C. 407, 66 S.E. 346, and are seeking to hold the defendant under its franchise for the original trespass as all its interest in *259 the dam and reservoir was transferred and conveyed to the Duke Power Company in 1932. Logan v. R.R., 116 N.C. 940, 21 S.E. 959; Campbell v. R. R., supra. Nor are the cases of Clinard v. Kernersville, 215 N.C. 745, 3 S.E. 2d 267, and Dayton v. Asheville, 185 N.C. 12, 115 S.E. 827, applicable to the facts of the instant record. In each of these cases, there was evidence of polluted air or stream, causing direct injury, which amounted to a “taking or appropriation” of the plaintiff’s land for a public purpose. Accordant: Rhodes v. Durham, 165 N.C. 679, 81 S.E. 938; Pumpelly v. Canal Co., 80 U.S. 166, 20 L. Ed. 557. It is provided by G.S. 1-52 (ss. 3), that for a continuing trespass on real property, “the action shall be commenced within three years from the original trespass, and not thereafter.” Clearly, the consequential trespass resulting from the retardation of the flow of the waters in Lower and Little Creeks, which the plaintiffs say began in 1928 and thereafter remained constant, is barred by this statute — the question of a direct “taking or appropriation” being out of the case or put to one side. Davenport v. Drainage Dist., 220 N.C. 237, 17 S.E. 2d 1; Cherry v. Canal Co., 140 N.C. 422, 53 S.E. 138; Stack v. R. R., 139 N.C. 366, 51 S.E. 1024. It follows, therefore, that the action was properly dismissed as in case of nonsuit. Affirmed. WiNBORNE and EkviN, JJ., took no part in the consideration or decision of this case.