ceded by the demurrer to be true, Robert Cain undoubtedly had the right to recover damages of the plaintiff for building a railroad track within six feet of his house, in violation of the ordinance of the city, and operating it in the manner set forth in the petition. His right of recovery would have been grounded upon the fact that he was the owner in fee of the property. The plaintiff herein could not have maintained an action before her husband's death, because, while she jointly with her husband occupied the homestead, the title was in the husband. The main ground of the demurrer is that the plaintiff cannot recover because the damages which accrued to the husband in his life-time were entire, and were capable of being determined at the time the side track was laid. In other words, it is said if the husband had commenced an action he would have recovered not only such damages as had then accrued but all subsequent damages, because the railroad track was a permanent structure, and the damages were susceptible of immediate estimate. To sustain this view reference is made to Powers v. Council Bluffs, 45 Iowa, 652. That was an action against the city for constructing a ditch along a public street in such a negligent manner that the plaintiff's property was injured, not from the original construction, but by reason or the action of the water in washing away the bottom and sides of the ditch along the plaintiff's lots. It was held that the damage was original, susceptible of immediate estimation, and was the difference between the value of the lots as they would have been if the ditch had been properly constructed and the value of them as they were, with the ditch as it was. It is said in that case: "While no infallible test can be applied to enable us to determine whether a structure is permanent or not, inasmuch as nothing is absolutely permanent, yet, when a structure is practically determined to be a permanent one, its permanency, if it is a nuisance and will necessarily result in damages, will make the damages original.' The broad distinction between that case and the case at bar is that the damages in the former necessarily resulted from the construction of the ditch, without the interposition any human agency, while in the latter the damages arise not so much from the laying of the side track as by its continued and improper use by the defendant. of It is averred in the petition that the use of said side track for railroad purposes has shaken the walls of said house so as to render it useless, and by leaving cars standing upon the track in front of plaintiff's door for a day or two at a time, and by other annoyances connected with the operation of the road, the plaintiff is damaged. It is said in Town of Troy v. Cheshire R. Co. 5 Foster, (N. H.) 83, that "wherever the nuisance is of such character that its continuance is necessarily an injury, and where it is of a permanent character, that will continue without change from any cause but human labor, then the damage is an original damage, and may be at once fully compensated." The case at bar is in no proper sense within this rule. The damage is a continuing one, resulting largely from the daily operation of the road by running engines and cars over it, and allowing them to remain upon it. The nuisance, so far as it is occasioned by operating the road, would be abated not by human labor, but by ceasing to use human labor to the plaintiff's injury. The general rule is that every continuance of a nuisance is a fresh one, and that successive actions may be maintained for damages so long as the nuisance continues. The principle has been so often announced that a citation of cases seems scarcely necessary. A few will suffice. Staples v. Spring, 10 Mass. 72; Holmes v. Wilson, 10 Adolphus & Ellis, 503; Blesh v. C. & N. W. R. Co. 43 Wis. 183; Carl v. The Sheboygan & Fond du Lac R. 1 N. W. REP. 295, (Wis. 201.) 2. Having found that the damage alleged in the petition is not original, but continuing, and that successive actions may be maintained so long as it is continued, it remains to be determined whether the plaintiff can maintain an action, she being the occupant of the property as her homestead. That she cannot recover for any injury to the property which accrued during the life of the husband seems to us to be clear. But it appears equally clear that she may recover for such damage as she has sustained since the death of her husband. That the owner of a life estate, or even a lessee, may recover damages occasioned by a nuisance affecting the real estate held or occupied by him can admit of no question. The plaintiff in this case has a homestead interest in the property. It may continue for life, depending upon the occupancy of it. If the enjoyment of her right is impaired or prevented by a wrong-doer she may maintain an action. She cannot, of course, recover for an injury to the reversionary interest; but if the side track were wrongfully laid as alleged, she may compel its removal. Code § 3331. Reversed. IRENE MOORE and others, Appellees, vs. JANE WEAVER and others, Appellants. Filed December 15, 1879. A. died seized of certain real estate, leaving surviving him neither wife, parent nor child-his step-mother, however, surviving. Held, that under the provisions of section 2457 of the Code she was entitled to onesixth of such real estate.-[ED. Appeal from Jones circuit court. This an action for the partition of certain real estate. William Moore, Jr., died intestate, seized in fee of the lands described, and leaving surviving him neither wife, child nor parent. His mother, Ann Moore, died prior to the death of his father, William Moore, Sr. William Moore, Sr., after the death of his wife, Ann, married the plaintiff Alvira Moore. The plaintiffs and the defendants differ in their views as to the proportion in which the estate shall be divided. The only question in the case is whether Alvira Moore, the step-mother of the intestate, is entitled to one-sixth of the estate as her share. The court below found that she was, and distributed the estate in accordance with that fact. defendants appeal. Shuan & McCarn, for appellants. King & Deitz, for appellees. The DAY, J. The case involves an application of the principles of the following sections of the Code: "2440. One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, which have not been sold on execution or any other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee simple if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. "2455. If the intestate leave no issue the one-half of his estate shall go to his parents, and the other half to his wife; if he leaves no wife the portion which would have gone to her shall go to his parents. "2456. If one of his parents be dead the portion which would have gone to such deceased parent shall go to the surviving parent, including the portion which would have belonged to the intestate's wife had she been living. "2457. If both parents be dead the portions which would have fallen to their share by the above rules shall be disposed of in the same manner as if they had outlived the intestate, and died in the possession and ownership of the portion thus falling to their share, and so on, through ascending ancestors and their issue.' The intestate left no issue, nor wife, and both his parents were dead. We must then inquire what would have been the result, under section 2457, if both the parents of the intestate had survived him and died in the possession of the portion falling to their share. If the parents of the intestate had survived him his father would have become seized of onehalf of the estate, and his mother of the other half. Upon the death of the mother her half would have descended to her legal heirs; the father would still have continued the owner of his half. Upon his marriage to the plaintiff Alvira she would have acquired inchoate rights in this property, and upon his death she would have been entitled to one-third of it in fee. That the above would have been the result, had the intestate's parents survived him, there can be no question. But section 2457 of the Code declares that, under the circumstances of this case, the property shall be disposed of in the same manner as if the intestate's parents had outlived him. We must, therefore, for the purposes of this case, suppose the intestate's parents living at the time of his death. It is urged that the husband of the plaintiff Alvira Moore was at no time possessed of an estate in the property in question, and that therefore she cannot, under section 2440, take any interest therein. The answer is that, under section 2457, the property is to be disposed of in the same manner as if the plaintiff's husband had been possessed of an estate therein. See Neely v. Wise, 44 Iowa, 544. The judgment of the court below is correct, and is affirmed. STATE OF IOWA, Appellee, vs. STEPHENSON, Appellant. Filed December 15, 1879. Former decision (N. W. REP. —, Iowa ——) affirmed. -) Appeal from Delaware district court. DAY, J. Upon the petition of appellant a rehearing was granted in this case. The rehearing was allowed, not so much on account of any doubt of the correctness of our former opinion, under the statute, as from a hope that we might be able to discover some legal avenue to a different conclusion, and thus relieve the defendant of the consequences of a conviction which seemed to us, under the circumstances, to be one attended with very great hardship. After a careful examination of the case we are unable to reach any other conclusion than that above announced. The opinion heretofore filed is adhered to. THOMAS BARR, Appellant, vs. C. L. PATRICK, Appellee. Filed December 15, 1879. Where one liable for an encumbrance upon lands conveys the same subject to such encumbrance, payment to be made by his grantee, he is, if he is obliged to pay the same, entitled to be subrogated to all the rights of the original owner of such encumbrance with reference to such lands; and where in such case payment was made by the owner of other lands, upon which such encumbrance was also a lien, in order to protect his own title, he is entitled to the same rights of subrogation. Where land was conveyed by A. to B., subject to the lien of a certain judgment to be paid by B., held, that his grantees took subject to the same, whether such judg |