Campbell v. Raleigh & Charleston Railroad

75 S.E. 1105, 159 N.C. 586, 1912 N.C. LEXIS 344

• Court: Supreme Court of North Carolina
• Decided: October 23, 1912
• Status: Published

Opinion

Hoke, J.

Our statute, Revisal, sec. 394, subsec. 2, provides as follows: “No suit, action, or proceeding shall be brought or maintained against any railroad company by any person for damages caused by the construction of said road or the repairs thereto, unless such suit, action, or proceeding shall be commenced within five years after the cause of action accrues; and the jury shall assess the entire amount of damages which the party aggrieved is entitled to recover by reason of the trespass on his property.” The summons in this action was first issued on 17 September, 1908, and, on a perusal of the entire testimony, that of plaintiff and others, it clearly appears that the ■ embankment complained of was constructed by the Carolina Northern Bailroad Company in 1901, and has been since maintained; that the rights, and interests of said company have been duly conveyed to the present defendant, the Ealeigh and Charleston Eailroad Company. It further appears that the embankment, at the time of its erection, produced the same physical conditions, necessarily causing the same or substantial injury and interference on plaintiff’s land that have existed since. Upon the admitted facts, therefore, and in any aspect of the matter, plaintiff’s cause of action is barred by the statute of limitations above quoted. Pickett v. R. R., 153 N. C., 150; Stack v. R. R., 139 N. C., 366; Ridley v. R. R., 124 N. C., 34. This being true, and the statute having been properly pleaded, it would serve no good purpose to consider and pass upon the other questions presented in the record, and the judgment of nonsuit will be affirmed. Oldham v. Rieger, 145 N. C., 258; Cherry v. Canal Co., 140 N. C., 422.

Affirmed.