# Pickens v. Coal River Boom Co.

> West Virginia Supreme Court · May 4, 1909 · 66 W. Va. 10

URL: https://www.frixlaw.com/law-library/cases/8176448

## Case

- **Full name:** Pickens v. Coal River Boom Company
- **Court:** West Virginia Supreme Court
- **Decided:** May 4, 1909
- **Citations:** 66 W. Va. 10; 65 S.E. 865; 1909 W. Va. LEXIS 117
- **Precedential status:** Published
- **Opinion:** On rehearing by Brannon
- **Judges:** Brannon, Williams
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8176448

## Opinion text

PETITION EOR REHEARING.
Brannon, Judge :
A petition for rehearing says that the Court did not consider a point of chief reliance of the defendant. This Court in this case has decided that Pickens was not barred from successive actions by one suit and recovery therein, but that he might maintain successive actions for different periods of time. The petition for rehearing does not claim to the contrary, does not claim that the damage was original and permanent in nature, but admits that there may be successive actions for continuing damage. But the point which it is said the court has not considered is thus stated in the petition for rehearing: “We do not claim that the statute runs from the construction of the boom. We freely admit that the statute does not begin to run until injury occurs. But we do insist that the statute begins to run when injury once occurs, and that the statute applies as well when there is a right to successive actions, as when all damages present and prospective must be recovered in one suit. We say that for all damages occasioned by the deposit of sand in any year a suit must be brought within five years thereafter; and that when this suit was brought on December 21, 1904, damages could only be recovered for injuries caused by sand deposited within five years prior thereto, and not for injuries caused by sand deposited at any time since the construction of the boom, as ruled by the trial court. As directly sustaining our contention we gave the Court the high authority of the Supreme Court of Pennsylvania in Lentz v. Carnegie, 145 Pa. St. 627, a decision which has never been answered or attempted to be answered by counsel for Pickens.”
It is said that instructions allowed the jury to consider dam *35 ages within five years before the second suit whether such damages came from sand deposited before or within five years; that the instructions did not tell the jury to eliminate damages caused by deposit of sand prior to five years and so the jury could consider damages coming from sand deposited prior to five years, though such sand were deposited prior to the first suit. Concede this. We say that as we held that the case did not call for recovery in one action for past and future damages the jury could consider damage attributable to sand deposited prior to the five years as well as damage coming from sand deposited within five years, because both co-operated in working damage. The jury could not do the impossible thing of separating those two deposits, and find what damage came from each. Suppose there was not a grain of sand deposited after the date of the first suit. If the old deposit kept its place and still continued to impede the mill wheels and curtail the power of the mill to grind, a second action could be sustained therefor, because the action was not for deposit of sand or construction of the boom, but for its effect on the mill, for loss or diminution of its working capacity within five years before the second suit. Suppose the boom caused additional sand deposit within five years before the second suit, and because of it the mill lost some of the power which it had at the date of the first suit, or lost none of its power, would not the old deposit of sand by helping the new deposit be liable for its aid or contribution to the result, that is, loss of capacity in the mill? Plainly it would. According to counsel the jury should have been told that it could not consider the old deposit as working damage, though the sand still kept its place in the stream and helped the new deposit to work damage. The jury should not have been told to thus split the cause of damage. It could and should consider the result, that is, the damage within five years worked by both deposits in lessening the milks power. The following from 25 Cyc. 1131, will answer the contention of counsel: “Continuing or Repeated Injury. Cases frequently arise where damages resulting from an act are continuing or recurring so that they cannot presently be ascertained or estimated so as to be presently recoverable in a single action. In such cases separate and' successive actions may be brought to recover the damages as they accrue, and a judgment rendered in one of *36 such actions lor damages accrued up to the time when suit was brought is no bar to another action to recover damages accruing after the judgment. To eases of this character the statute of limitations does not have the same rigid application as to cases where all the damages may be recovered in a single action, and the two main principles applying are as follows: Where continuing or recurring injury results from a wrongful act or from a condition wrongfully created and maintained, such as a continuing nuisance or trespass, there is not only a cause of action for the original wrong, arising when the wrong is committed, but separate and successive causes of action for the consequential damages arise as and when such damages are from time to time sustained; and therefore so long as the cause of the injury exists and the damages continue to occur plaintiff is not barred of a recovery for such damages as have accrued within the statutory period beyond the action, although a cause of action based solely on the original wrong may be barred; but the recovery is limited to such damages as accrue within the statutory period before the action. Where continuing or repeated injury results to plaintiff from an act not of itself or in its inception unlawful or injurious to him, as in the case of a nuisance caused by a structure lawfully erected, no cause of action arises at the doing of the act or the erection of the structure, but aside from this the law is substantially the same as in the class of cases just mentioned; each recurrence of damage gives rise to a new and separate cause of action and the statute runs against each as it arises, so that a recovery may be had at any time during the continuance of the injury, for such damages as have accrued during the statutory period before the action unless sufficient time has elapsed to give defendant a prescriptive right to continue the cause of the injury.” So, though the .act of construction of the boom was lawful, yet, as it created a condition by deposit of sand entitling Pickens to recovery, it is not material when the sand was deposited creating that condition which caused the damage. That condition or state of the stream coming from the construction of the boom, and that condition still continuing entitling Pickens to recovery, how is it material when the sand was deposited so it continued to work damage within the five years for which this suit was brought ?
*37 Counsel tell us that the case of Lentz v. Carnegie, 145 Pa. St. 612 ( 27 Am. St. R. 717 ), is conclusive to reverse this case. It was an action for damages to land caused by coal slack thrown into a stream and carried by the water and deposited on land. Evidence and instructions were given to consider the value of the land as a whole as it was before the deposit of the slack and what was its present worth. Slack had been deposited more than six years before the suit. The court held it error to allow the value of the land before the deposit to be compared with its present value, because that would include damage done before six years, since the original deposit was seventeen years before the action. That was a question of the value of the land; in other words, it would give damage for seventeen years and thus include damage from the start. Now, that case concedes the right to recover damage to the farm in its use within six years, the limitation period. The objection was that the evidence and instructions allowed the jury to go behind six years. That is its point in the opinion. But that case does not say that the jury could not consider slack deposited before the six years as still operating in damaging the cropping and other use of the land within six years. That case has nothing to do> with the point made by counsel, that is, that the jury must find damage coming only .from that sand deposited within five years before the second suit, and ignore any effect within those five years, of sand deposited prior thereto. If the decision is sound it does not settle that point. I may cite per contra Bower v. Cook, 4 M. G. & S. 236, where there was a previous recovery for placing stumps and stakes in a ditch on land, and a second suit was brought for continuing them in the ditch, and recovery allowed. So Holmes v. Wilson, 10 Ad. & El. 503, where trustees of a turnpike had built buttresses to support it on the plaintiff’s land. Though the plaintiff had already recovered for the creation of the nuisance, it was held that he could recover for its continuance. So I may cite Gulf v. Roberts, 86 U. S. 1062 . A railroad company left timber in a stream obstructing its flow and overflowing land, as rains came. Held that the land owner could sue as often as he suffered injury from loss of use of land for crops, but not for difference in market value of land before and after obstruction of the stream — just like the Lentz case. Now, what the difference between deposit of stumps and trees *38 and deposit of sand? We are also referred to Cavanaugh v. Durbin, 156 Mass. 470 . Durbin had cut a ditch and erected a dam on plaintiff’^ land. He sued the city of Boston. The city was held not liable. It was claimed that Durbin was liable not only for the cost of removing the dam and filling the ditch, but for damages for loss of the use of the land to' date of suit. It was held that the delay was caused by mistaking the remedy and suing the city of Boston erroneously, for which Durbin was not liable and that damages could not be enhanced against him. I do not see that that case is applicable to this.
Remember that this is a suit for damage in lessening the power of the mill of Pickens. It is for the effect of the sand upon the mill, not like permanent injury to land from deposit upon it. Pickens had right to operate his mill in its original condition not only during the five years involved in the first suit, but also during the five years involved in the second suit. He had right to run that mill every minute, every hour, every dajr, week, month and year, free of damage from deposit of that sand, and it is utterly immaterial when that sand was deposited, so it continued to operate in diminishing the working capacity of the mill
It is but repetition of old principle and of what has been several times said in the litigation over this matter, to say that it is only the case of a private non-abatable nuisance because working injury to private property, every day’s -continuance of the old cause being a fresh injury giving cause for successive actions. 3 Blackstone 220; 23 Cyc. 1187. That the boom was built under law does not give immunity from damage, because the Legislature could not exempt from damage under the Constitution, and also because the boom act says that a boom company shall be liable.
As the Driving Company operated the boom and worked damage, it would be liable, not only for deposit in its own time, but also that deposited by the lessor, on principles stated in Pickens v. Boom Co., 58 W. Va. 11 .
Rehearing Refused.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8176448. Public record. Not legal advice.