James v. City of Kansas

Ewing, C. This is a suit for trespass on real estate commenced the 29th of March, 1879. The petition alleges the ownership of certain lots in the City of Kansas to be in plaintiff. That in 1869 the defendant, without leave and wrongfully, entered thereon and caused to be built a sewer. That afterwards plaintiff built a house on his said lot and by reason of the sewer it cost him $900 more to make his foundation than it would if there had been no sewer there, whereby he is damaged, etc. The answer, amongst other things, pleaded the statute of limitations. Upon the trial the plaintiff offered evidence tending to show that the allegations of the petition were true. The defendant demurred to the evidence which was sustained, and plaintiff appealed to ' this court. The only question in the case, made by the motion for a new trial, is the action of the circuit court in sustaining the demurrer to the evidence. I. This is an action for trespass to real estate, which by statute must be commenced within five years after the cause of action shall have accrued. Secs. 3228, 3230, R. S. 1879. The evidence and pleadings tend to prove that the wrongful entry and trespass was some time in the year 1869, and the petition was filed March 29, 1879. Hence the suit is barred by the statute, unless there is something in the case which takes it without its operation. It is insisted by the appellant that “every continuance of the trespass is a fresh trespass,” and for which the plaintiff may sue. That this being true the •plaintiff’s cause of action only arises from the date of his injuries, and is not barred by the statute of limitations. [570] This is a correct position, in relation to snch trespasses-as are continuing; but when the trespass is permanent and original; where the damage is complete by the original act of trespass, the statute begins to run from that-time. In the case at bar the wrongful entry was the time from which the defendant was liable for damage to-plaintiff. Plaintiff could then have commenced his-action for injury. The wrongful entry and building the sewer across plaintiff’s lots was the whole cause of the damage, complete and entire at that time, and for which full compensation could have been readily estimated for the whole wrong. Soulard v. St. Louis, 36 Mo. 546 ; Wood on Lim., p. 371, sec. 180; Powers v. Council Bluffs, 45 Iowa 652 ; Troy v. Cheshire Ry. Co.,. 3 Poster (N. H.) 83. In 45 Iowa, supra, the court say : “Whenever the nuisance is of such a character, that its continuance is necessarily an injury, and when it is of a permanent character that will continue without change from any cause but human labor there the damage is an original damage and may be at once fully compensated.” K. P. Ry., v. Mihlman, 17 Kan. 224. But there is another principle, as I understand, which conflicts with the appellant’s position, and bars his right-of recovery. While each continuance of a nuisance or a. trespass is considered a new ground for cause of action and recovery, notwithstanding the statute may have barred an action for former injuries from the same nuisance, yet this proposition is only true, when the action shall be commenced before the party committing the trespass or maintaining the nuisance, has acquired a prescriptive right to do so, by the lapse of such period as bars an entry, upon lands held by another. In this-case the evidence tends to prove that this sewer was built as early as 1865, a period of thirteen years before the commencement of this suit. Wood on Lim., p. 376, sec. 181., Marr v. Gilliam, 1 Cold. (Tenn.) 488; Sibley v. Ellis, 11 Gray (Mass.) 417. So that if by lapse of time the defendant acquired the right to maintain its sewer [571] across the plaintiff’s lots before the suit was commenced, then the plaintiff has no cause of action. “The prescription begins to run from the time when a legal right is actually invaded by the nuisances, so that the law will imply damage therefrom, and must continue for the period requisite under the statute for acquiring a title to-land by adverse enjoyment.” Wood on Limitations, sec. 182. If these positions be true the court below did not err; and as that disposes of the case it is useless to-examine the other questions presented. The judgment is affirmed. All concur.