Spilman v. Roanoke Navigation Co.

74 N.C. 675

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

Reads, J.

The substance of the finding of the jury is, that by the continuous flooding and sobbing of the. land of the plaintiff for the last three years by the defendant, the land has been injured.$50 per year, $150 for the three years, and that the plaintiff has been damaged to that amount.

The jury were permitted to arrive at that conclusion by considering evidence as to the productiveness of the land -as flooded, compared with its productiveness when not flooded. To this the defendant excepted, for the reason that the recovery can be for injury to the land only and not.for injury to the crops or loss of crops. And he cites among other authorities, Slodge v. R id, at last term, 73 N. C. Rep., 440; in which we held, that in an action for a mule there .could not be a recovery for the supposed value of a crop which might have been made with the mule, but only the value of the mule,'

We are still of the opinion that that case is right. But how was tlie value of the mule to be shown? All mules are not of the same value. If it were kept' and used for work, it would be propel’ to enquire into its qualities and strength ; if kept to ride; whether it was stylish and its paces easy? if for racing, what was its speed ? All this simply to show the value of the mule.

So when the value of land is to be ascertained. If kept for cultivation, as this was, what was its productiveness ? how much did it produce when not flooded ? how much did it produce as flooded ? All this simply to show the value of the land, and the injury to it; and not to recover for the supposed loss of the crops. When the time is pas , the comparison of the crops in connection with the seasons and other circumstances, is the best possible test as to the injury to the land. If the net profit of the products when the land is not flooded is $50, and the net profit is nothing when flooded, then it is demonstrated that it is injured $50 by the flooding.

Again, the defendant insists that the first flooding wras done more than three years before the action commenced, and that that was the time when the injury was done; and so, the action is bai’red by the statute of limitations.

The defendant’s illustration is worth preserving for its amusing fallacy : “ Suppose lie had lamed the plaintiff’s horse more than three years ago, and he had continued lame ever since, the action would be barred. So, as he first injured the plaintiff’s land more than three years ago, and it has continued injured ever since, the action is barred.” The fallacy is in not drawing the distinction between a single act of injury and continuous acts. In our case, he flooded the land more than three years ago, it is true; and for that the action is barred; but he has also continued to flood it anew every day within three years, and for that the action lies. See Garrett and wife v. Dabney and others, at this term.

There is no error.

Per Curiam. Judgment affirmed.