#### R. C. BARCLIFT and Wife v. NORFOLK SOUTHERN RAILROAD CO.

(Filed 20 February, 1918.)

1. Railroads — Construction—Waters—Damages—Limitation of Actions.

Under the provisions of Revisal, sec. 394 (2), that actions to recover damages caused by the construction of a railroad, or repairs thereto shall be commenced within five years, etc., after the cause of action accrues, the statute does not necessarily begin to run from the time the road or ■ structures were orginally erected if thereafter changes have been made therein which caused appreciable and substantial damages to adjoining lands.

2. Same — Ditches—Increase of Flow.

A railroad company in 1881, by lateral ditches, diverted quantities of water from their natural flow, conveying a part of the same by a drain ditch towards plaintiff’s land, passing through a culvert under a county road, which method was sufficient at that time not to appreciably injure the plaintiff’s land or crops growing thereon. In 1911 the company enlarged the ditch so as to increase the flow of the diverted water, to the substantial damages to the plaintiff’s land and crops he endeavored to grow thereon, for which compensation is sought in the action: Held, the statute began" to run from the later date, 1911. Revisal, sec. 394 (2).

*1153.Railroads — Waters—Measure of Damages — Entire Damages — Crops.

The damages to land caused by the building of a railroad and structures within contemplation of Bevisal, sec. 394 (2), are the entire damages, past, present, and prospective, including not only the depreciation of the land incident to the trespass, but also the injury to growth of crops during the period covered by the enquiry to the time of trial, which may be assessed by the jury on separate issues as to each.

Civil action, tried before Kerr, J., and a jury, at November Term, 1917, of PasquotaNK.

Tbe action, instituted 30 October, 1915, is to recover for tbe alleged wrongful diversion of water by defendant company on tbe lands of plaintiffs R. C. Barclift and bis wife, Lavinia, causing substantial damages to tbe same. On denial of liability, tbe jury rendered tbe following verdict:

1. Is tbe plaintiff tbe owner of tbe land described in tbe pleadings? Answer: “Yes.”

2. Has tbe defendant wrongfully diverted and discharged tbe water on tbe lands of tbe plaintiff, as alleged ? Answer: “Yes.”

3. What damage, if any, was done to tbe crops of Luna Barclift during tbe years 1913, 1914, 1915, 1916, and 1917? Answer: “1913, $75; 1914, $75; 1915, $87.50; $1916, $50; 1917, $100. Total, $387.50.”

4. Wbat permanent damage, if any, has tbe plaintiff, Luna, Barclift, sustained to ber lands described in tbe complaint by tbe wrongful acts of tbe defendant? Answer: “$50.”

5. Is tbe right of action of tbe plaintiffs barred by tbe statute of limitations? Answer: “No.”

Judgment on tbe verdict for plaintiff, and defendant excepted and appealed.

Aydlett & Simpson and Thomas J. Markham for plaintiff.

Ward <& Thompson for defendant.

Hoke, J.

There were facts in evidence tending to show that defendant company, constructing its road in 1881, by lateral ditches diverted quantities of water from its natural flow and drainage and by a drain ditch conveyed a part of this diverted water towards tbe lands of plaintiffs, passing through a culvert under a county road, etc.; that this drain ditch, as originally made by tbe company, was about six -feet wide and two to three feet deep and held tbe water in such fashion-that tbe culvert under tbe county road and lower drain ditches were sufficient to carry same to a natural watercourse and without appreciable injury to plaintiff’s lands or tbe production of crops growing thereon; that in 1911 tbe company enlarged this drain ditch to 9 feet in width and made *116it much deeper, and in tbis way increased tbe flow of tbis diverted water to' sncb an extent that tbe culvert under tbe road and tbe lower ditches were insufficient to carry it off, and tbe plaintiff’s lands and‘tbe crops be endeavored to grow tbereon were thereby greatly injured and damaged.

These facts, which have been accepted by tbe jury and established by their verdict, give plaintiffs a clear right to recover, and there is no error, to defendant’s prejudice, in tbe proceedings below.

Our statute, Revisal, sec. 394, subsec. 2, provides that actions to recover damages caused by tbe construction of railroads or repairs thereto shall be commenced within five years after tbe cause of action accrues and requires that, in any such action, tbe jury shall assess tbe entire amount of damage which tbe party aggrieved is entitled to recover by reason of tbe trespass upon bis property. In construing this statute, it has been repeatedly held that tbe limitation begins to run, not from tbe time tbe road or structures are built or repaired, but from tbe time that said structures cause appreciable and substantial damages to tbe property. It is further held that tbe entire damages shall be awarded, “past, present and prospective,” and that said damages may properly include, not only tbe depreciation in tbe value of tbe land incident to tbe tresspass, but also tbe injury to growth of crops during tbe period covered by tbe inquiry and to tbe time of trial, and that these different sources of damages may be assessed on separate issues if such a course is found desirable. These positions were all recognized and applied in Barclift v. R. R., 168 N. C., 268, a suit between these same parties concerning another piece of land in tbe same locality and involving the same diversion of water and tbe trespass incident to tbis alleged wrong. That well-considered case is in full accord with our decisions on tbis subject, and we regard it as decisive of all questions presented on tbe present appeal. Perry v. R. R., 171 N. C., 38; Duvall v. R. R., 161 N. C., 448; Porter v. R. R., 148 N. C., 563; Beasley v. R. R., 147 N. C., 362; Stack v. R. R., 139 N. C., 366; Ridley v. R. R., 118 N. C., 996.

We find no error in the record, and the judgment for plaintiff is affirmed.

No error.