Delaware & Raritan Canal Co. v. Wright

Opinion of the court delivered by Carpenter, J. Every continuance of a nuisance is held to be a cause of action ; and an action will lie as well against him who continues, as against him who first levied a nuisance. 3 B. C. 219; Thompson v. Gibson, 7 Mees. & W. 465; Staple v. Spring, 10 Mass. 74. Therefore, an action will lie' for the recovery of any damages suffered by the continuance of a nuisance, which have accrued within six years; though it seems the right of action will be barred only by an adverse possession of twenty years. Angell on Lim. 234, and cases cited. But supposing the building of the culvert to have been lawful, as urged by the counsel of the company, the injury was merely consequential, and in such case the statute only begins to run from the time the special damage accrued. 2 Greenl. Ev. § 433; Stark. Ev. 659. This principle has been well applied to acts done by commissioners and others acting under authority given by statute, in which case there is generally a special limitation prescribed in the same statute. The act being lawful, and the action being sustained only in consequence of special damage, it has been held, that in such cases, the statute only begins to run from the time when the consequential injury occurred, and not from the time of doing the act which gave occasion to the consequential injury. Roberts v. Read, 16 East. 215; Wordsworth v. Harley, 1 B. & Adol. 391; Gillon v. Boddington, 1 Car. & Payne, 541. There was no error in the charge of the judge, and the judgment must be affirmed. The Chief Justice and Nevius, J. concurred. Judgment affirmed. Cited in Del. & Bar. Canal Co. v. Lee, 2 Zab. 251-4.