The opinion of the court was delivered, January 31st 1870, by
Sharswood, J. —
The Act of March 27th 1713, 1 Smith 76, for limitation of actions, copied from 21 Jac. 1, c. 16, includes in its enumeration all forms of personal actions in use, but it provided [478] that the time should be reckoned from the cause of action or suit, and not after. Hence most probably the construction, which has been uniformly received, that it is not the form, but tbe cause of action which is to be considered: and it may be stated as a general rule that wherever the cause of action is such as would be subject to the bar if prosecuted under any of these forms, then the statute is applicable: otherwise not. “ It is the nature of the cause of action,” says Mr. Justice Agnew, “such as a legacy, a foreign judgment, a widow’s interest, an award at common law or a distributive share, rather than the form of action, which determines the applicability of the statute:” De Haven v. Bartholomew, 7 P. F. Smith 129. Accordingly it has been uniformly held to apply to proceedings in other courts, and before other tribunals than those of the common law, though the words of the statute are evidently confined to the latter: and this not merely by analogy as has been sometimes inaccurately stated, but because the true spirit and intent of the statute requires that the rule should be uniform. “It is said,” remarks Lord Redesdale, “that courts of equity are not within the statutes of limitation. This is true in one respect: they are not within the words of the statutes, because the words apply to particular legal remedies: but they are within the spirit and meaning of the statutes, and have been always so considered. I think it is a mistake in point of language to say that courts of equity act merely by analogy to the statutes; they act in obedience to them:” Hoveden v. Lord Annesley, 2 Schoale & Lefroy 629. The justice of this observation has been always since acknowledged: 2 Story’s Eq. 1520; Bank v. Daniels, 12 Peters 56; Humbert v. Trinity Church, 24 Wend. 594. “ I do not say,” remarks Sir William Scott, “ that the Statute of Limitations extends to prize causes; it certainly does not: but every man must see that the equity of the principle of that statute in some degree reaches the proceedings of this court:” The Mentor, 1 Rob. 180. It follows that the bar of the statute is applicable, though the legislature may provide new and special proceedings in cases, which before were remedied in the common-law forms: for it cannot be supposed that a virtual repeal of the statute was intended: Farnam v. Brooks, 9 Pick. 242. The inquiry must then be what would have been the form of action at common law, if the special tribunal and proceeding had not been provide^ If in such form there would have been a bar, it will still continue.
It is not necessary to consider the case of an actual taking of property by a corporation in virtue of the right of eminent domain, under an authority granted by the sovereign. The Act of April 17th 1866, Pamph. L. 106, has enacted “that no suit or action shall be brought against any railroad company, incorporated by the laws of this Commonwealth, for damages, for right of way or [479] use and occupancy of any lands by said company, for the use of their railroad, unless such suit or action shall be commenced within five years after said lands shall have been entered upon, for the purpose of constructing said road, and within three years after said road shall be in operation.” As to how far the construction of this act is to be affected by the fourth section of art. vii. of the constitution I say nothing. In regard, however, to any actual taking by other than railroad companies, it rather seems to me that under this constitutional provision no title to the land or an easement over it is gained without payment of or security for the damages. An occupation or use must be regarded as a continuing trespass, for which ejectment, trespass or ease would lie unaffected by the bar of the statute as far as the right is concerned. It would operate only to limit the period for which damages could be recovered to six years before the commencement of the action. Nothing but adverse possession or user for twenty-one years would bar the right of action itself. It would follow then that when a statute gives a new and special remedy, and precludes all others, the Act of Limitations does not apply. If there can be but one such proceeding, instead of successive actions, then the consequence that entire damages must be given, measured by the depreciation of the property, instead of merely the actual damage sustained for a limited period, ought to make no difference in the result.
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The opinion of the court was delivered, January 31st 1870, by
Sharswood, J. —
The Act of March 27th 1713, 1 Smith 76, for limitation of actions, copied from 21 Jac. 1, c. 16, includes in its enumeration all forms of personal actions in use, but it provided [478] that the time should be reckoned from the cause of action or suit, and not after. Hence most probably the construction, which has been uniformly received, that it is not the form, but tbe cause of action which is to be considered: and it may be stated as a general rule that wherever the cause of action is such as would be subject to the bar if prosecuted under any of these forms, then the statute is applicable: otherwise not. “ It is the nature of the cause of action,” says Mr. Justice Agnew, “such as a legacy, a foreign judgment, a widow’s interest, an award at common law or a distributive share, rather than the form of action, which determines the applicability of the statute:” De Haven v. Bartholomew, 7 P. F. Smith 129. Accordingly it has been uniformly held to apply to proceedings in other courts, and before other tribunals than those of the common law, though the words of the statute are evidently confined to the latter: and this not merely by analogy as has been sometimes inaccurately stated, but because the true spirit and intent of the statute requires that the rule should be uniform. “It is said,” remarks Lord Redesdale, “that courts of equity are not within the statutes of limitation. This is true in one respect: they are not within the words of the statutes, because the words apply to particular legal remedies: but they are within the spirit and meaning of the statutes, and have been always so considered. I think it is a mistake in point of language to say that courts of equity act merely by analogy to the statutes; they act in obedience to them:” Hoveden v. Lord Annesley, 2 Schoale & Lefroy 629. The justice of this observation has been always since acknowledged: 2 Story’s Eq. 1520; Bank v. Daniels, 12 Peters 56; Humbert v. Trinity Church, 24 Wend. 594. “ I do not say,” remarks Sir William Scott, “ that the Statute of Limitations extends to prize causes; it certainly does not: but every man must see that the equity of the principle of that statute in some degree reaches the proceedings of this court:” The Mentor, 1 Rob. 180. It follows that the bar of the statute is applicable, though the legislature may provide new and special proceedings in cases, which before were remedied in the common-law forms: for it cannot be supposed that a virtual repeal of the statute was intended: Farnam v. Brooks, 9 Pick. 242. The inquiry must then be what would have been the form of action at common law, if the special tribunal and proceeding had not been provide^ If in such form there would have been a bar, it will still continue.
It is not necessary to consider the case of an actual taking of property by a corporation in virtue of the right of eminent domain, under an authority granted by the sovereign. The Act of April 17th 1866, Pamph. L. 106, has enacted “that no suit or action shall be brought against any railroad company, incorporated by the laws of this Commonwealth, for damages, for right of way or [479] use and occupancy of any lands by said company, for the use of their railroad, unless such suit or action shall be commenced within five years after said lands shall have been entered upon, for the purpose of constructing said road, and within three years after said road shall be in operation.” As to how far the construction of this act is to be affected by the fourth section of art. vii. of the constitution I say nothing. In regard, however, to any actual taking by other than railroad companies, it rather seems to me that under this constitutional provision no title to the land or an easement over it is gained without payment of or security for the damages. An occupation or use must be regarded as a continuing trespass, for which ejectment, trespass or ease would lie unaffected by the bar of the statute as far as the right is concerned. It would operate only to limit the period for which damages could be recovered to six years before the commencement of the action. Nothing but adverse possession or user for twenty-one years would bar the right of action itself. It would follow then that when a statute gives a new and special remedy, and precludes all others, the Act of Limitations does not apply. If there can be but one such proceeding, instead of successive actions, then the consequence that entire damages must be given, measured by the depreciation of the property, instead of merely the actual damage sustained for a limited period, ought to make no difference in the result.
The case before us is not that of an actual taking, but of consequential damages: the right to recover which the legislature might have withheld altogether, but they did not choose to do so. By the Act of April 16th 1838, Pamph L. 477, and the supplement thereto of March 23d 1839, Pamph. L. 129, in conferring upon the borough of West Chester the powers necessary for the purpose of introducing a suificient supply of fresh and pure water, they provided a mode of ascertaining and recovering damages “ to any person or persons who may be injured by the diversion of the waters that may be used by the said borough for the purposes aforesaid.” Had the borough of West Chester, without the express authority of law, undertaken to divert the waters of Chester creek, they would have been liable to the plaintiff for any damage sustained by him in consequence of such illegal act in an action of trespass on the case. Until such a period of time had elapsed as that the plaintiff’s right to the uninterrupted flow of the water would have been lost or- extinguished by adverse user — he could have maintained actions to recover the damages from time to time as they accrued: for it would have been a continuing wrong or nuisance. There is no ground for the presumption that the legislature in providing the special remedy meant to subject him to any new bar from lapse of time, which would not have existed independently of it. They meant, indeed, that instead of successive [480] actions on the case there should be but one proceeding; the judgment in which should be in effect a transfer to the borough of all his right to the waters of the creek, which might be needed for the purposes in contemplation. This indeed calls necessarily for a new rule for the assessment of the damages, but creates no new bar from lapse of time. If it were so he would be deprived of his common-law remedy, and nothing effectual would be substituted for it. For suppose, as may well have been the case, that when the borough first began to divert the water, it was in quantity so small that the value of the plaintiff’s farm was not sensibly affected. Apart from the lawful authority vested in the borough he might perhaps have maintained an action at common law without proving any damage, on the principle of the Tunbridge Wells Dipper’s Case, 2 Wils. 422 — adopted by this court in Williams v. Esling, 4 Barr 486 — in order .to establish his right to the water, and prevent the acquisition of an adverse right by the defendants, grounded on his acquiescence in their use, but he certainly was not bound to do so. He had a period of twenty-one years in which in that view he might safely remain inactive. On the other hand, it was always in the power of the borough, by instituting proceedings themselves against any owner of lands through which the creek runs, to acquire his right, if they could not have accomplished the same thing in a more inexpensive mode by purchasing releases at the outset. It is no answer to this to refer to the extent of the course of the stream, and the number of landholders through whose property it runs, and the want of knowledge or notice to the borough of any claim for damages. They must be intended to foresee and know all the natural consequences of their acts, and it was their duty to govern themselves accordingly. We think, therefore, that the learned judge below erred in entering a nonsuit.
We are of the opinion that he was right in rejecting the evidence offered to prove the probable consequences of cattle running into the impure and stagnant water. Its effect upon the value of his farm was too vague, remote and uncertain, to form an element for the estimation of the damages by the jury.
Judgment reversed, and procedendo awarded.
Thompson, C. J. —
I agree to the reversal of this case, but do not agree that the statute of limitation of actions is a bar in any case of taking under the right of eminent domain.
Williams, J. —
I concur with the Chief Justice.