Stout v. Kindt

[452] The opinion of the Court was delivered by Rowans, J. Possibly the act of stopping the sewer would fall under the protection of the maxim, causa próxima non remota spectatur, if we must regard it simply as occasioning, and not as necessarily occasioning or naturally producing the ditch which did the injury; but even this would not require a reversal of this .judgment, for the defendants really did both acts, and, view it as we may, the injury is one and the same. The defence attempted by them was that the supervisors authorized the making of the ditch; but it is very plain that there is evidence of the consent of only one supervisor, and that merely, perhaps, to gratify the wishes of Stout. We do not, therefore, perceive that the defendants below were injured by the supposed error. The damage was simply charged to one of their two acts, instead of the other. Regarding the case thus, of course the statute of limitations has not had time to run, for the really injurious act was done within six years before the suit was brought. Rut even if we were to look to the act of stopping the sewer as the really injurious one, the statute does not affect the case, though that was done ten years before suit brought. The right which owners of land have to insist that the water of streams or of rain shall flow away in its natural or prescriptive course is called an easement or servitude, convenience or burden, according as it is regarded in one or the other aspect, the terms being truly correlative. Eléta, iv. 18, calls it servitude, and classes it as an appurtenance, and thus we learn that, as a part of the land, the right to it is not lost until after twenty-one years of undisputed interruption. 'The obstruction of the sewer was equivalent to a continuing nuisance to all who might be injured by it, and the statute runs only from the happening of each actual injury. Judgment affirmed. Black, J., dissented.