
    Case 82 — Action to Recover Damages for Injury to Land
    Oct. 16.
    Louisville & N. R. R. Co. v. Cornelius.
    APPEAL FROM LOGAN CIRCUIT COURT.
    Judgment fob Plaintiff and Defendant Appeals.
    Affirmed.
    Railroads — Culverts—Construction—Surface Water — Diversion— Trespass — Limitation.
    Held: Though the negligence complained of in the petition in an action against a railroad company referred to the act of opening a culvert, and not to the manner of its construction, yet, as the issue made in the evidence, and presented to the jury by the instructions, was upon the question whether the construction of the culvert was proper and skillful, the injury resulting from collecting the surface water upon the land opposite, and casting it in a body upon plaintiffs land, is not to be considered as of a permanent character, but each overflow was a distinct trespass, and the statute of limitations began to run only from the time when the overflow occurred.
    W. F. BROWDER, EDWARD W. HINES, H. W. BRUCE, J. C. BROWDER and WALKER D. HINES, for appellant.
    W. P. SANDIDGE and S. R. CREWDSON, for appellee.
    (No briefs in the record.)
   Opinion of the court by

JUDGE DuRELLE

Affirming.

Appellee brought suit against appellant company, alleging ownership of a tract of 85 acres of land adjoining and to the north of appellant’s right of way in Logan county; that her land slopes gradually away from the railroad, while the land immediately on the' other side of the road slopes gradually towards the railroad; that in 1856 appellant constructed a long fill along its right of way at that point, and that for 30 years the surface water upon the upper side flowed against the embankment, and along the south side thereof, until it found an outlet; that in 1886 the' company “wrongfully, unlawfully, and negligently opened a narrow culvert under said fill opposite to pldintiff’s land above mentioned, and as a result thereof all of said water which falls on said higher land on the south side of said railroad at said point is collected into . , said artificial channel or culvert, wrongfully and negligently constructed by defendant as aforesaid, and is discharged in a strong stream onto the plaintiff’s land;” that in July, 1899, appellee had 20 acres of fine tobacco growing •on her land; that at that time there was considerable rainfall, and the water falling on the upper side of the railroad opposite her land was collected in the culvert or artificial channel, and discharged in such force and in such/ volume on her land that it washed up and destroyed a large part of her tobacco crop, and washed away the best and richest portion of the soil; that ever since the construction of the culvert the water flowing through it has been destroying crops growing on her land, and washing away the soil' therefrom. She prayed judgment for $1,000 damages. The answer was a general denial of • negligence and damages. In one paragraph appellant pleaded the statute of limitations of five years, to which plea a demurrer was sustained. The principal question presented on this ap- . peal is as to the sufficiency of the plea of the statute. On behalf of appellant, it is claimed that the negligence complained of referred to the act of opening a culvert, and) not to the manner of its construction; that' the cause of action set up is, therefore, for damages resulting from a proper reconstruction of the railroad, to which reconstruction the same rule should apply as to its proper original construction and operation. If this contention be correct, the doctrine laid down in Railroad Co. v. Orr, 91 Ky., 109 (12 R. 756) 15 S. W., 8, is applicable, and. the five-year-statute of limitations is a bar to the action. The majority of the court,however,are of opinion that, whatever may be said of the issue as tendered in the petition, the issue made in the evidence and presented to the jury by the instructions -was upon the question whether the construction of the culvert was proper and skillful. This being so, it follows that the injury resulting from collecting the surface water upon the land opposite and casting it in a body upon appellee’s land is not to be considered of a permanent character, but each overflow was a distinct trespass, and the statute of limitations began to run only from the time when the overflow occurred. 24 Am. & Eng. Ency. Law, 95; Railroad Co. v. Emmert (Neb.) 73 N. W., 540 (68 Am. St. Rep., 602).

The instructions seem to have properly presented this view of the case to the jury, and the judgment is therefore affirmed.  