448 BALDWIN V. SIMPSON. [191 • BALDWIN V. SIMPSON. • 4-3974 •• Opinion delivered October 14-, 1935.. LIMITATION OF ACTIONS—INJURIES TO FROFERTY.—An action against a railroad for damages to a dwelling from the operation . of a coal chute is barred after 3 years from the completion of the chute, and it is imMateiial that the action is brought within 3 years from the remaval of a garage which had previously protected the property. .Appeal from . Clark Circuit Court; Dexter Bush, Jucige; reversed. Suit by .Tennie Simpson against L. W..BaldWin and Guy A. 'Thompson, receivers of the Missouri Pacific Rail-rnad Company. From a judgment for plaintiff, defendants have appealed. • R. E. Wiley, Henry Dunham and Wm. P. Bowen, for appellants. . . Pawl H. CallaWay and Joseph ' Callaway, for appellee. BUTLER :, J. The appellee, , Jennie Simpson, filed her Original coniplaint in the Clark Chancery Court on •July 10, 1934, alleging that she was the owner of a certain lot in the town of Gurdon on which she had lived tor more than, forty years; that while she was owner of the same the - Missouri P a o ifi P . r gaiirciad linmpany oroatwi and placed in Operation a coal chlite, the operation of which had greatly decreased the value Of her property because great clouds of coal . dust and cinders were blown thereon. She prayed that . the operation 'of said Chute be perma- nently 'enjoined, and that She recover for damages already sustained. To this Complaint a 'deinurrer was filed which was ovethiled. Therenpon, an answer was filed denying the material allegations of tbe complaint and alleging that said coal chute was completed and placed in operation on "May 29, 1928, and had Since been continually operated 6.6 day; that *said structure was permanent, and the damage inflicted was an original damage on the Completion of the coal chute and that plaintiff's cause of action for damages was barred by the statute of limitation, which was pleaded as a defense to such action.
ARlt.] BALDWIN SIMPSON. 449 On January 1, 1935, an amendment to the complaint was filed by which plaintiff alleged that during the month of April, 1933, at other times since then, and from'time to time when appellant was loading -locomotive tenders from the -coal chute and unloading coal; and when-the wind was blowing from the chute toward her 'home,- her honse and furniture became covered with dust, smoke and cinders from the , coal chute, and that the damage complained of. was not the construction of the coal chate but the , recurring. damage to her.property since April, 1933. The . chancery court' tranSferred the cause to- the Circuit court-without objection, and- thereafter an ansWer to -the aniendment .. to the complaint wasifilek denying the -material 'allegations thereof, interposing a -plea of. the. statute of limitation, , and setting up all .the other defenses .of, the original answer: The cause, was tried . in the circuit. court, and , resulted in a verdict and judgment: for the plaintif,„from which, comes this appeal. . The coal chute, operation of which is .alleged to -have caused the damage complained of in this case, is the Wen-tiealstructure involved in: the case of Mo. Pao.. Rd. Co..v. Davis,. 186 Ark.: 401, :53 S. W . (2d) 851, dainage•:for the operation of. which' were there, sought to-be recovered. In-that case.the conrt said : f `If it (the coal chute) had been negligently constructed, or negligently operated and such negligence caused injury to appellees property; they would be , entitled. to recover, no matter. when' the coal chute was erected, but the -structure is sueh that damage. would. necessarily result and also the certainty; nature and extent of -the damage could be reasonably-estimated and ascertained, and,-the damage was there-: fore original. In such cases there can be- but a : single recoVery,- and the statute of limitation§ -against such cause •of action is set in motion •upon tbe completion .of the constructiOn." • ,• - • Appellee's house iS situated-from seventy-fiVe-to : one-hundred feet from the coal chute : i" -The chute is a tall structure, the top bin being about-eighty-five feet 'above the . ground, and the evidence -is undisputed; as in the DaViscase, that there was 'no : negligence- in the- eonstrue-
450 BALDWIN V. SIMPSON. [191 tion or operation of the coal chute. It occurs to us that as soon as the chute began to be operated, damage to the appellee would. occur, although the effects from such operation and the resultant damage to appellee might not have been immediately apparent, and that this case is ruled by Mo. Pao. Rd. Co. v. Davis, supra. • Appellee attempts to distinguish the Davis case from the case at bar on the theory that damage to her property was not sustained untit the removal of a garage which stood.between her property and the coal-chute, which was within three years before the filing of her complaint. The evidence is undi gputed that the .railroad company had nothing to do with the 'erection or-removal of the garage. This is substantially the contention made and overruled. In the case of Board of Directors, etc., v. 'Barton, 92 Ark. 406, 123 S. W. 382, Where the facts were that a levee was constructed in the year 1899 as a- solid .embankment across certain water courses completely obstructing the passage of water, and, at the time' of the trial of the case, had been -continuously maintained in the same condition as when built. The damage complained of .did not occur until the 'year 1906. When the levee was first constructed and until the year 1906 .the waters whic.h were impounded gradually increased in volume each year, covering more and more land. • During the years 1906. and '07, the waters first encroached upon plaintiff's lands, rendering a large portion thereof unfit for cultivation. Action to recover damages was instituted. It was alleged that damage was not at first apparent and did not become so until the spring of 1906. A plea of the three-year statute' of limitation was interposed as a defense to plaintiff's action. In sustaining the plea, the court said : "Whatever damage accrued tO adjoining lands was done then, for the construction of the embankment necessarily caused injury to all lands drained by those streams and bayous, though the exact amount of damage to crops from year to year could not with certainty be then determined. But the injury to the lands was a permanent one, and the damages were original, and compensation should have been sought in one action
brought within the period of limitation. The action was• barred." From the doctrine of the Barton . case, suprd, it would seem in the instant . case that, although damage did not occur to the appellee within three years before the filing of her Stht, that; as the eoal chute was a pertnanent structure from the operation of which damage would necessarily flow, her cause of action accrued -in 1928 and was barred by the statute of limitation when her Suit was filed. ' • • • It follows that the judginent of the- trial- court is reversed, and the cause dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.