Turner v. Overton

Hart, J., (after stating the facts). The appellees have pleaded the statute of limitations of three years in bar of this action. The suit was commenced on the 23d day of December, 1905, and the undisputed testimony shows that the ditch complained of was constructed during the spring of 1902. In the case of St. Louis, I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, the rule is stated as follows: “Whenever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. * * * -But when such construction is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the- injury to be compensated in a suit is only the damage which has happened, and there may be as many successive recoveries as there are successive injuries. In such case the statute of limitations begins to run from the happening of the injury complained of.” This rule has been repeatedly followed by the court, being applied according to the facts in each individual case. Railway Company v. Yarborough, 56 Ark. 612; Railway Company v. Cook, 57 Ark. 387; St. Louis, I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360; St. Louis, I. M. & S. Ry. Co. v. Stephens, 72 Ark. 127; St. Louis S. W. Ry. Co. v. Morris, 76 Ark. 542; Chicago, R. I. & P. Ry. Co. v. McCutchen, 80 Ark. 235; St. Louis, I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387. Counsel for appellant in their brief contend that appellees were wrongdoers ab initio, and that they are chargeable with knowledge that the straightened channel of the creek,-made so by the construction of the ditch, would so accelerate the flow of the water as to materially injure the land of appellant. Conceding this to be true, the damage was original and susceptible of immediate estimation. In other words, they claim that the injury to the land resulted from the construction of the ditch. Therefore it necessarily follows that the cause of action was barred at the institution of the suit. The physical facts bear out this view. «The evident object of digging the ditch was for the purpose of straightening the channel of the creek across the lands through which it runs, and thereby draining the lands. It was obvious that water would flow faster through a straight than through a crooked channel. That the velocity of the water in the channel of the ditch was greater than that in the old channel- of the creek must have been perceptible from the first. That the swifter current would cause the banks of the ditch to be worn away, and thus make it deeper and wider, was also apparent. The present and future effect upon the land could have been ascertained with reasonable certainty, and, the injury complained of was permanent in its character. Therefore, we are of the opinion that the action is barred by the statute of limitations. Having held that the action is barred by the statute of' limitations, it is not necessary to determine the other questions presented by the appeal. Judgment affirmed.