For the purpose of this case the following condensed statement of the facts will be sufficient:
The plaintiff in error, W.H. Parsons, owned, and he with his wife and children, occupied certain lots in the City of Uvalde for a number of years prior to the erection by the defendant in error of its plant and the putting of the same into operation, which occurred in the year 1907. More than two years after the completion of the buildings and the location of the machinery and the commencement of the operation of the same, Parsons, joining with him his wife and children, instituted a suit in the District Court of that county against the Electric Light Company to recover damages occasioned to his home place in the reduction of its market value by reason of the operation of the said machinery, and also to recover damages to himself and family which had been caused at different times by the operation of the said machinery from the beginning until the time of the filing of the suit, and which occurred from *Page 214 time to time during the operation of the said machinery by reason of the smoke, dust, cinders and other things which originated in and continued with the operation of the said machinery, and by which, from time to time, annoyance, inconvenience, personal discomfort and sickness were caused to the different members of the family.
The defendant, the Electric Light Company, filed a special demurrer to the petition on the ground that the cause of action was barred by the statute of limitation of two years, under which it was contended that the right of action for damages, both in the reduction of the value of the land and in the creation of inconveniences, personal discomfort, etc., arose at the time that the machinery was completed and put into operation, more than two years before the filing of the petition and was barred. The plaintiffs dismissed as to the damages caused by the reduction in the value of the land, and the case went to trial; the court instructed the jury to find for the plaintiff damages arising from the operation of the machinery and causing personal inconvenience, sickness and the like of the plaintiff and his family, but limited the right of recovery to such as accrued within the period of two years next preceding the filing of the petition. The jury returned a verdict for the plaintiff for $500 for himself and $500 for his wife, but found nothing in favor of the children of plaintiff. From this judgment the Electric Light Company appealed to the Court of Civil Appeals, which reversed the judgment of the District Court and remanded it for a further trial, basing this action upon the ground that the court erred in not sustaining the special demurrer to the plaintiff's petition on the ground that the action was barred within two years from the completion and commencement of the operation of the machinery. The plaintiff in error alleged that the decision of the Court of Civil Appeals practically settled the case, and upon that ground the writ of error was granted by this court.
The sole question presented to us is, did the right of action for damages to the plaintiff and his wife by reason of the operation of the machinery accrue at the time the machinery was put into operation and require that all future damages should be recovered in the one action?
The rules of law which must govern in the decision of this case are clearly stated thus:
"Wherever the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original and may be, at once, fully compensated. In such case, the Statute of Limitations begins to run upon the construction of the nuisance.
"But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries. In such case the Statute of Limitations begins to run from the happening of the injury complained of." *Page 215 St. Louis, Iron Mountain Southern R. Co. v. Biggs,52 Ark. 240, 6 L.R.A., 804, 12 S.W. 331, 20 Am. St., 174.
In Illinois Central Railroad Company v. Grabill, 50 Ill. 247, cited by defendant in error, the court said:
"If the damages recovered were for deterioration in the value of the plaintiff's property, such recovery would be a bar to any further prosecution for the same cause, but if they were for annoyance merely, and for rendering the air unwholesome, then a similar recovery might be had at every term of the court."
Our Supreme Court stated clearly the distinction of the two classes of actions thus: "We conclude from the authorities that where a nuisance is permanent and continuing the damages resulting from it should all be estimated in one suit; but where it is not permanent, but depends on accidents and contingencies, so that it is of a transient character, successive actions may be brought for injury as it occurs, and that an action for such injury would not be barred by the Statute of Limitation unless the full period of the statute had run against the special injury before suit. The embankment and the culverts were permanent but the nuisance was not; there was no constant and continuing injury." Austin Northwestern Railway Co. v. John Anderson,79 Tex. 433, 15 S.W. 485, 23 Am. St., 350. See Gulf, C. S.F. Ry. Co. v. Helsley, 62 Tex. 593.
The distinction is so clearly drawn in the authorities cited that we deem it unnecessary to discuss them at length. We have carefully examined all authorities cited by defendant in error as well as many others, and we have not found one that sustains the proposition upon which the decision of the Court of Civil Appeals rests. In Railway Co. v. Anderson, supra, Judge Collard states with precision the distinction, as quoted above. The electric light plant was not situated upon Parsons' land, its existence or operation did not necessarily create a nuisance to plaintiff, it was only when the wind carried the smoke and cinders onto the premises that damage was caused. The court said in that case, "The embankment and culverts were permanent, but the nuisance was not." So in this case, the electric light plant, its buildings and machinery, were permanent and continuing, but smoke, cinders, etc., the nuisance which caused the injury, were not continuous. That case and this rest upon the same principles of law.
In Houston Waterworks v. Kennedy, 70 Tex. 233, the court makes the distinction which clearly discloses its inapplicability as authority in this case. The cutting of a hole in the wall of the building gave to the owner a right of immediate action for weakening the wall, but the damage resulting from the unlawful act occurred when the crack appeared, which the law required the owner to anticipate. In this case no invasion of Parsons' right of possession nor injury to his property occurred when the structures of the electric light plant were erected, and no right of action accrued to him as owner of adjacent lots, indeed, no action could have been maintained against the company for reduction in value until, by the operation of the machinery the injury accrued. *Page 216 It logically follows that limitation did not run against a suit for personal injury until the right of action accrued from the operation of the plant. In the case of Waterworks v. Kennedy, there would have been no crack in the wall but for the wrongful act of making the hole in the wall of the building, hence the right of action was based upon the act of making the hole. In the instant case, the injury to health and comfort did not depend upon a reduction in value of the property. If the value of the property had increased, the injury to health would have afforded a ground of action. The two actions, although arising from the same cause, would have required the application of different measure of damages.
It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and that the judgment of the District Court be affirmed.
Reversed and judgment of District Court affirmed.