Edwards v. Atchison

GILBERT, Circuit Judge (after stating the facts as above). The ease is presented in this court on the single contention that there was total absence of evidence sufficient in law to prove a prescriptive right in the defendant to use the plaintiff’s land for discharging thereon drainage waters through the culvert; the plaintiff asserting that no prescriptive right begins to run until a right of action accrues, and that no right of action accrues until injury is inflicted. The evidence indicates with reasonable certainty that from the year 1887 until the date of the injury here complained of winter floods caused surface waters to flow along the ditch and through the culvert and upon the land of the plaintiff, and that the flowing of such waters at some time prior to the injury complained of created a depression or small ravine upon the plaintiff’s land, but no serious injury thereto. The discharge of surface waters through the culvert was open and visible, and the plaintiff is presumed to have had knowledge of it. Gray v. Cambridge, 189 Mass. 405, 76 N. E. 195, 2 L. R. A. (N. S.) 976; 9 R. C. L. 780. It was not necessary for the defendant to show a continuous use. The interruption of the use by the intervention of a dry season would not disprove continuity. Hesperia Land Co. v. Rogers, 83 Cal. 10, 23 P. 196, 17 Am. St. Rep. 209. It may be conceded, as the plaintiff contends, that, in order to acquire a prescriptive right, there must have been such invasion of the rights of the plaintiff as to give him a right of action, and that a prescriptive right does not commence to run until there is such invasion. But it is not essential to an adverse user that such user has resulted in actual damages (19 C. J. 889), for each act of user before the user ripens into a right is a trespass for which an action may be maintained (2 Wood, Nuisances, 708; Eells v. Chesapeake & O. Ry. Co., 49 W. Va. 65, 38 S. E. 479, 87 Am. St. Rep. 787). “The .law implies nominal damages from the invasion of a right, and every use may be deemed adverse which tends in any degree to impose a servitude or burden upon the estate of another.” White v. Chapin, 12 Allen (Mass.) 516, 520. We are not convinced therefore that the evidence was insufficient in law to show a prescriptive right in the defendant. But there is other ground for sustaining the judgment. It was not until long after the construction of the roadbed, ditch, and culvert and long after surface waters had been accustomed to flow through the culvert and upon the plaintiff’s land that the defendant became the owner of the railroad. Applicable to those facts, we think, is the rule that a party, not the original creator of a nuisance, must have notice of it and a request to remove it before any action can be brought against him, and that the mere occurrence of injury to the plaintiff’s land without any finding of .such knowledge or notice of the existence of the nuisance as to charge the defendant with fault for its continuance is insufficient to create a right of action. Grigsby v. Clear Lake Water Co., 40 Cal. 396, 407; Central Trust Co. v. Wabash St. L. & P. Ry. Co. (C. C.) 57 F. 441; Union Pac. R. Co. v. Campbell, 236 F. 708, 150 C. C. A. 40; Philadelphia R. R. Co. v. Smith, 64 F. 679, 12 C. C. A. 384, 27 L. R. A. 131; Hines v. Woodson (C. C. A.) 280 F. 966; Groff v. Ankenbrandt, 124 Ill. 51, 15 N. E. 40, 7 Am. St. Rep. 342. In the ease last cited, the court said: “Where a party comes into possession of land, as grantee or lessee, with an existing nuisance upon such land, and he merely permits the nuisance to remain or continue, he cannot be held liable in an action for damages, until he has been first notified or requested to remove the nuisance.” The judgment is affirmed.