Nichols v. Norfolk & Carolina Railroad

26 S.E. 643, 120 N.C. 495

Opinion

ClabK, J.:

The allegation in the complaint that the fertility of the plaintiff’s land vras almost wholly destroyed, and thereby rendered unfit for agricultural purposes, was notice to the defendant that the action was for permanent dam ages (Parker v. Railroad, 119 N. C., 677, and cases there cited), and the defendant’s prayer for instruction was also básed 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. Railroad, supra, which action, like the present, was begun before the Act of 1895, Ch. 224, which reduces the limita tion for an action 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 parry aggrieved is entitled to recover by reason of the trespass on his property.” The evident meaning of this Amt is that hereafter, in ail 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 worksabar.” Strickland v. Draughan, 91 N. C,, 103,.and cases there cited; Cooly Const. Lim. 450 (8th Ed.) and-cases there cited. This action, having been institued before the passage of the Act, is not affected by it.

No Error.