Action for Damages — Permanent Injury to Land by Construction of Railroad — Pleading — Statute of Limitations.
1. In an action against a railroad company for injury to plaintiff's land by the construction of defendant's roadbed, an allegation in the complaint that the fertility of plaintiff's land was almost wholly destroyed by such construction, and thereby rendered unfit for agricultural purposes, was notice to the defendant that the action was for permanent damages.
2. Before the Act of 1895 (ch. 224) a railroad could acquire the prescriptive right to pond water on adjacent lands only by subjecting itself to an action for the injury continuously for twenty years.
3. The Legislature may reduce or extend the time within which an action may be brought, subject to the restriction that when the limitation is shortened "a reasonable time must be given for the commencement of an action before the statute works a bar."
4. Chapter 224, Acts of 1895, reducing the time for bringing actions against a railroad company for permanent injury to land, caused by the construction or repair of defendant's road, to five years, does not apply to a suit begun before its passage.
CLARK, J.
The allegation in the complaint that the fertility of the plaintiff's land was almost wholly destroyed, and thereby rendered unfit for agricultural purposes, was notice to the defendant that the action was for permanent damages ( Parker v. R. R., 119 N.C. 677, and cases there cited), and the defendant's prayer for instruction was also based upon such being the nature of the action. The Court, therefore, properly refused to charge, as prayed, and instructed the jury that the action would be barred only by the lapse of twenty years. This was held in Parker v. R. R., supra, which action, like the present, was begun before chapter 224, Laws 1895, which reduces the limitation for an action (498) against the railroad company "for damages caused by the construction of said road or repairs thereto" to five years, and also requires that the jury "shall assess the entire amount which the party aggrieved is entitled to recover by reason of the trespass on his property." The evident meaning of this act is that hereafter, in all actions against railroads for injuries from construction or repair of the road, the permanent damages must be assessed. It is settled beyond controversy that while the Legislature has the power to extend or reduce the time in which an action may be brought, this is subject to the restriction that when the limitation is shortened "a reasonable time must be given for the commencement of an action before the statute works a bar." Strickland v. Draughan, 91 N.C. 103, and cases there cited; Cooley Const. Lim., 450 (8 Ed.), and cases there cited. This action, having been instituted before the passage of the act, is not affected by it.
No error.
Cited: Culbreth v. Downing, 121 N.C. 206; Harrell v. R. R., 122 N.C. 823; Narron v. R. R., ib., 860, 861; Ridley v. R. R., 124 N.C. 36; Hocutt v. R. R., ib., 218; Lassiter v. R. R., 126 N.C. 513; Geer v. Water Co., 127 N.C. 354; Phillips v. Tel. Co., 130 N.C. 527; Matthews v. Peterson, 150 N.C. 133; Graves v. Howard, 159 N.C. 603.