Love v. Postal Telegraph-Cable Co., 221 N.C. 469 (1942)

June 5, 1942 · Supreme Court of North Carolina

221 N.C. 469

JOHN B. LOVE, JR., v. POSTAL TELEGRAPH-CABLE COMPANY.

(Filed 5 June, 1942.)

1. Trespass § lg—

The placing and maintenance by a telegraph company of its transmission lines on private lands constitutes a continuing trespass.

2. Easements § 4: Eminent Domain § 24: Telephone and Telegraph Companies § 4—

Where the owner of land seeks to recover permanent damages to his land by reason of the maintenance by a telegraph company of its transmission lines upon his lands, the awarding of permanent damages would be equivalent to the acquisition of an easement by condemnation.

3. Limitation of Actions § 6—

Where the owner of land seeks to recover for trespass and for permanent damages to his land resulting from the erection and maintenance by ' defendant telegraph company of its transmission lines over his land, the action for trespass is barred by the three-year statute of limitations, • O. S., 441 (3), the trespass being a continuing trespass, but the action for permanent damages as compensation for the easement is not barred until defendant has been in continuous use thereof for a period of twenty years so as to acquire the right by prescription.

Appeal by plaintiff from Bone, J., at January Term, 1942, from BLADEN.

Civil action for trespass and for permanent damages.

In 1891 tbe defendant constructed its transmission lines along a trail or highway over lands in Bladen County, now owned by tbe plaintiff. In 1927, when tbe highway was widened, tbe defendant moved part of its transmission lines from tbe highway right of way, to tbe extent of 24 poles, over on tbe lands now occupied by tbe plaintiff.

Tbis action was instituted 27 September, 1940, to recover for tbe original trespass and for permanent damages.

Tbe defendant denied liability and pleaded tbe tbree-year statute of limitations, C. S., 441 (ss. 3).

From judgment of nonsuit entered at tbe close of plaintiff’s evidence, be appeals, assigning error.

H. H. Ciarle and Edward B. Clark for plaintiff, appellant. '

Rountree & Rountree for defendant, appellee.

Stacy, C. J.

Tbe action for trespass is barred by tbe tbree-year statute of limitations, C. S., 441 (ss. 3). Tbe applicable provision is tbat actions for continuing trespass upon real property shall be commenced witbin three years from tbe original trespass, i.e., in tbe language of tbe statute: “When the trespass is a continuing one, tbe action shall be commenced witbin three years from tbe original trespass, and not thereafter.”

It was said in Teeter v. Tel. Co., 172 N. C., 783, 90 S. E., 941, tbat an action such as tbe present is to be regarded as one for a continuing trespass witbin tbe meaning of tbe law. Hence, for damages incident to tbe original wrong, and for tbat alone, no recovery can be bad after the lapse of three years. But tbe plaintiff also sues for permanent damages, which, on recovery and payment, so far as plaintiff is concerned, would confer on tbe defendant tbe right to maintain its line on plaintiff’s land for an indefinite period with tbe right to enter thereon, when reasonably required, for “tbe planting, repairing, and preservation of its poles and other property.” Caveness v. R. R., 172 N. C., 305, 90 S. E., 244. In short, in its broader aspect, tbe suit is to recover for tbe value of an easement, which can pass to tbe defendant only by grant, condemnation or prescription — this last by adverse possession and continuous user for a period of twenty years. Teeter v. Tel. Co., supra.

In case of railroads, by C. S., 440, this period has been reduced -to five years, but there being no such statute in respect of telegraph companies, tbe common-law period of twenty years is required. Geer v. Water Co., 127 N. C., 349, 37 S. E., 474.

Tbe awarding of permanent damages would be equivalent to tbe acquisition of an easement by condemnation. Geer v. Water Co., supra; Query v. Tel. Co., 178 N. C., 639, 101 S. E., 390.

Viewing tbe action, then, not simply as one for tbe original trespass, but also to recover permanent damages as compensation for an easement, there was error in allowing tbe defendant’s motion for judgment of nonsuit.

Reversed.