St. Louis, Iron Mountain & Southern Railway v. Biggs

52 Ark. 240

• Court: Supreme Court of Arkansas
• Decided: May 15, 1889
• Status: Published

Opinion

Sandels, J.

The alleged nuisance was constructed in 1873. The injury complained of was in 1885. It is argued by the appellant that the statute of limitations began to run against appellee upon the construction of the nuisance. Ry. Co. v. Morris, 35 Ark., 622; and Ry. Co. v. Chapman, 39 Ark., 463, are relied on as establishing this contention. The facts in those cases make them clearly distinguishable from this case.

statute of Limitations; Nuisance. The rules applicable to the recovery of damages for the construction and continuance of nuisances in cases of this kind are stated satisfactorily to this court by numerous authorities, as follows: Whenever the nuisance is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be, at once, fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. Ry. v. Morris, 35 Ark., 622; Ry. v. Chapman, 39 Ark., 463. But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is. only the damage which has happened; and there may be as. many successive recoveries as there are successive injuries. In such case the statute of limitations begins to run from the happening of the injury complained of. Roberts v. Read, 16 East, 215; 2 Grl. Ev., 433; L. & N. Ry. v. Hays, 14 A & E. Ry. Cases, 284; Troy v. Cheshire Ry. Co., 23 New Hamp., 83; Wood on Nuisances, sec. 863; Wood on Limitations, 180; Angell on Limitations, 300. This case falls within the latter class.

Affirm.