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In McGuire v. Grant, 25 N. J. L. 356, the defendant had removed the lateral support of the plaintiff's land. Damages having been subsequently sustained, suit was brought. The statute of limitations was relied on as a defense, the removal of the lateral support having taken place beyond the statutory period. But the court held that the cause of action was the damage sustained by the falling of the land, and that the falling of the land having occurred within the time limited the statute of limitations was no defense. The case of Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98, is an exceedingly important decision on the subject under consideration. It is true that the sub.. ject of future damages was not authoritatively settled in that case, as what was said on that point was mere obiter. But the opinion contains such a careful review of the whole matter that it will not be disregarded in the future by that tribunal.

independent subsidence, resulting from the excavation which occasioned the first subsidence (but not a continuation of that subsidence) without the intervention of any act of the defendants since the original excavation. Lord Fitzgerald continues: "There can be no doubt that though there had been no act of commission by the defendants since the completion of the excavation of 1868, yet if there had been no subsidence causing damage to the plaintiff prior to that of 1882, the present action could be maintained; but it is alleged that as the plaintiff had a complete cause of action in 1868, the statute of limitations then began to operate and has barred the present action. It was further argued that the plaintiff, in 1868, could and ought to have insisted on recovering once and for all any damage that might arise prospectively from the excavation of 1868 according to the rule of law, which in order to prevent a multiplicity of actions, provides that damage resulting from one and the same cause of action must be assessed and recovered once and for all. We have to consider what was the cause of action in 1868, and whether the cause of action of 1882 is one and the same cause of action as that of 1868. If it is so then the defendants are entitled to succeed on the defense of the statute of limitations. * * * It seems to me that Backhouse v. Bonomi, did decide that the removal of the subjacent strata was an act, (I will not say an innocent act) done in the legitimate exercise of ordinary ownership which per se gave no right of action to the owner of the surface, and that the latter had no right of action until his enjoyment of the surface was actually disturbed. The disturbance then constituted his right of action. There was a complete cause of action in 1868, in respect of which compensation was given, but there was liability to further disturbance. The defendants permitted this state of things to continue without taking any steps to prevent the occurrence of any future injury. A fresh subsidence took place causing a new and further disturbance of the plaintiff's enjoyment, which gave him a new and distinct cause of action. If this view is correct then it follows that the cause of action now insisted on by the plaintiff is not the same cause of action as that of 1868, but is in point of law as it ist tle to the land; and thus instead of conforming to physically a new and independent cause of action arising in 1882, to which the defense of the statute of limitations is not applicable. The necessary conclusion is that Lamb v. Walker, was not correctly decided, and that the able reasoning of Cockburn, C. J., in that case ought to have prevailed."

In Whitehouse v. Fellowes, 10 Q. B., N. S. 765, the defendants, as trustees of a turnpike company, had so constructed a drain along the highway as to cause injury by the flow of water to plaintiffs' mine. To the action brought to recover damages the defendants set up the statute of limitations; but the court held that the action was not barred, as the damages sued for had been sustained within the statutory period, although the construction of the drain was beyond that period. The Court of Appeals in Mitchell v. Darley Main Colliery Co., thus very clearly states the substance of the reasoning of the court in Whitehouse v. Fellowes: "The Court of Common Pleas said the causa causans of the injury to the property was a continuing cause, but that cause alone gave to the phine owner no cause of action. It was a cause which the hereby any damage was occasioned to a mine ownlawfuoroperty would immediately give him a cause of pose of It had given a cause of action some time ago of the cau.hat the trustees continued it. They might The cause of it. The continuing causa causans resubsidence toosmained in the power of the trustees, and menced running to injury to the mine owner's propIn Nicklin v. W. new cause of action because it was land owner's property in each case."

The action was for unlawfully obstructing a street by the construction of a railroad, and the court charged that the plaintiff was entitled to recover the permanent damages to his property sustained by reason of the obstruction, on the theory that the obstruction was permanent in its nature. On appeal the court held that the plaintiff could not recover any damages; but the court went further and reviewed the charge of the trial judge, on the subject of permanent damages, and held that it was erroneous. The court said: “The question however still remains, what damages? Are her damages on the assumption that the nuisance was to be permanent, or only such damages as she sustained up to the commencement of the action?" There never has been in this State before this case the least doubt expressed in any judicial decision, so far as I can discover, that the plaintiff in such a case is entitled to recover damages only up to the commencement of the action. After reviewing many authorities the learned judge continues: "If the rule affirmed be the correct oue, then a railroad company authorized to construct its road may enter upon the lands of any private person and take them, and in a suit for trespass the plaintiff must recover his entire damages, and the railroad company must become substantially vested with the

the statute, it may acquire land by a pure trespass."

In Williams v. Pomeroy Coal Co., 37 Ohio St. 583, the facts were as follows: Defendants, while working their mine, broke over the line, and took coal from the mine of the adjacent owner. The trespass was committed in 1861. In 1868, the plaintiff while working his mine, the mine on which defendant had trespassed, broke into the excavation which defendants had made, and through the opening thus made water flowed into and damaged the plaintiff's mine. Action was brought to recover the damages suffered by plaintiff, and it was urged on his behalf that it was a proper case for the application of the doctrine of continuous nuisance, and that therefore every item of damage created a new cause of action. But the court held that the only wrong of which the defendants had been guilty was the original trespass committed when they broke through into plaintiff's mine in 1861, and that therefore the plaintiff's claim for damage was outlawed.

A recent case in the New Jersey Court of Chancery is very interesting and important. It is Executors of Lord v. Carbon Iron Manuf. Co., 8 Atl. Rep. 812. The syllabus states with precision the substance of the decision. "For a simple trespass, which is complete when the force by which it was committed ceases, and which is continuous in nothing but the consequences which may flow from it subsequent to its commission, the only remedy known to the law is an action of trespass, in which the person injured must recover his damages once for all."

"As a general rule the only legal duty which a trespasser incurs by his wrongful act, where his trespass is complete when judicial aid is invoked, is a liability to reimburse the person injured in money for the loss which his trespass has caused."

"If an upper mine owner breaks through a barrier which was left by the lower mine owner for the purpose of protecting his mine against the water which otherwise would flow from the upper into the lower mine, the trespasser is answerable for the damages, including the costs of restoring the barrier; but the trespass in such case imposes no legal duty upon the trespasser to either close the opening or to prevent the water in his mine from flowing through the opening into the lower mine."

The flowage of water from the upper mine into the lower through an opening thus is neither the continuance of a trespass nor of a nuisance, and gives no distinct ground of action."

The suit was in equity to compel the defendants to protect the complainants against water flowing from defendants' mine into the mine owned by complainants through an opening. The court assumed for the purpose of the argument, what however was not the fact, that the defendants had made the opening, and that it was a trespass for which they were responsible. It was urged that although the action for the original trespass was barred by lapse of time, yet that every day's continuance of the opening gave the complainant a new cause of action, for the reason that the defendants owed to the plaintiffs the duty of repairing the breach, and that therefore equity would interfere to compel the performance of this duty to prevent a multiplicity of suits. On this point the court say: "Therefore if the wrong which forms the ground of his action had been committed on the surface, and had consisted of an excavation made in the complainants' land, and also of the removal of a solid stone wall erected by the complainants on their own land to prevent the water of a pond standing on the defendants' land from overflowing theirs, and the effect of the defendants' wrongful acts in making the excavation and removing the wall had been to produce a continuous discharge of the water of the pond over the complainants' land, which would continue, constantly inflicting additional injury so long as the wall was not restored, and the complainants had failed to apply for protection while the wrong was in progress, but came seeking it after all force and violence had ceased, and after the defendants' trespass as a legal wrong was fully completed, though its injurious consequences were still in progress, I consider it entirely clear on principle that under such a condition of facts this court would be powerless to give the complainants any relief whatever. It is certain that the trespass could not be restrained, for as already remarked, it is impossible to restrain or prevent the doing of that which has already been done. It is equally certain that this court has no power to decree the payment of pecuniary damages in satisfaction of such a wrong, and I know of no power in this court or in any other which gives it authority when one person had made an excavation in the land of another, to command the aggressor to go back and fill up the excavation, and restore the land to its original condition. Such a decree would, I think, be entirely anomalous, having the support of neither precedent nor principle. And it would produce this incongruous state of affairs: To redress the first trespass the court would command the aggressor to commit a second. Nor do I think this court has power in such a case to compel the wrong doer to erect a wall on his own land to protect the injured party against the consequences of his wrongful act. The practical effect of such an exercise

of power, it will be observed, would be to fasten a perpetual easement on the lands of the aggressor as a remedy for a trespass committed by him on the land of his neighbor. I have never understood that it was possible for any such consequences to flow from a trespass, nor that it was possible for an easement to have its origin in such a source. Acts which are wrongful in their origin may be repeated so frequently and so long as to raise the presumption of a grant, and thus to transform what was originally wrongful into a right; but I know of no act which a wrong-doer may do on the land of another which will give the person injured a right of any kind in the land of the wrongdoer.

"It would seem therefore to be entirely clear, that if the trespasses on which the complainants ground their right to relief had been committed on the surface, this court would have been without the slightest pretense of jurisdiction over the case, and that the only remedy to which the complainants could in that case have had recourse would have been an action at law. But the complainants say that their right in this respect is changed by the place where the trespasses were committed, and by the character and consequences of the trespasses. The proposition on which they rest their right to a remedy in equity is this: That the defendants, by their trespasses, having placed the two mines in such a position or relation to each other that water rising in the defendants' mine must necessarily, by force of the law of gravitation, flow into that of the complainants, they thereby imposed upon themselves as a consequence of their wrong a legal duty to prevent the water accumulating in their mine from flowing into the complainants' mine; and that inasmuch as the complainants can only have adequate protection against the injuries which will arise from the violation of duty, by an injunction commauding the defendants to prevent the water in the mine from flowing into the complainants' mine, their right to relief in equity is clear, for the reason that a court of equity is the only tribunal which can effectually and adequately redress their wrong. This proposition, it will be observed, goes to the length of declaring that it is a settled rule of law, that a trespass which is complete in every thing except its damnifying consequences when suit is brought, will in a case like the present raise a duty against the person committing it to do something more in making redress for it than to pay pecuniary damages. No such duty, it is clear, exists by force of any general principle, and if it exists at all, it must be as an exception to some general rule. According to the rule which prevails generally, if not universally, in such cases, the only legal duty which a trespasser incurs by his wrongful act, where bis act, as a legal wrong, is complete when judicial aid is invoked, is a liability to reimburse the injured person, in money, for all loss, both direct and consequential, which his trespass has caused. If A. breaks the windows of B.'s house, and a rain storm should afterward occur before B. could, by the exercise of reasonable diligence, have the windows repaired, and his house should in consequence be seriously injured by the rain, B. in a suit against A. would be entitled to recover all the damages which his house has sustained, as well resulting from the destruction of the windows as those subsequently caused by the rain. But B. could not leave his windows in the insecure condition in which A.'s wrongful act put them, and then maintain an action against A. for not repairing them. To allow B. to maintain an action against A. for not repairing the winduws would involve this absurdity: A. would have no right to enter B.'s close to repair the windows-if he went there, even for that purpose, he would commit a further trespass-and so,

if B. should be allowed to maintain an action against A. for not repairing the windows, his action would rest on A.'s not doing that which he had no right to do."

It has been held however that where the plaintiff sues merely at law to recover his damages, but brings a suit in equity to have the thing which causes him continuous damages enjoined and for damages, it is proper for the court to assess the permanent damages to his property sustained by the thing on the theory that it is to remain forever, and direct that the defendant pay such damages upon receiving from the plaintiff a deed of the property actually seized, and consequential damages to the other property of the plaintiff. Henderson v. New York Cent. R. Co., 78 N. Y. 423.

would be arrogating to itself a power not possessed by the court of chancery-the power to convert by decree, and against the consent of the owner, a mere trespass into a transfer of his property on receiving compensation. The doctrine that all damages connected with and flowing from a single cause of action must be recovered in one action, is so elementary, has obtained so long, and is founded upon such obvious principles of justice and reason, that no extended examination of the authorities will be attempted. The following cases, among others, which might be or have already been cited, sustain this doctrine: Donaldson v. M., etc., R. Co., 18 Iowa, 280; Penn. R. Co. v. Brooks, 57 Penn. St. 339; Filer v. N. Y. C. R. Co., 49 N. Y. 42; Holyoke v. Grand Trunk R. Co., 48 N. H. 541; Klein v. Jewett, 26 N. J. Eq. 474; M., etc., R. Co. v. Whitfield, 44 Miss. 466; Whitney v. Clarendon, 18 Vt. 252.

And yet, in the face of this well-settled doctrine, we find the English Court of Appeal, or rather the judges of that court, totally disregarding it, in the case of Brunsden v. Humphrey, 24 Am. Law Reg. 369. Plaintiff's person and cab were injured by the negligence of defendant's servants. Having recovered damages in one action for the injnry to his cab, he brought a new action for the damages to his person. Held, he could recover, the ground of decision being, that as plaintiff was injured in two distinct rights-person and property-he could maintain two distinct actions. Lord Coleridge dissented, saying: "That the injury done to the plaintiff is injury done to him at one and the some moment, by one and the same act, in respect of different rights, i. e., his person and his goods, I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions if he is injured in his arm and in his leg, but can bring two, if besides his arm and leg being injured, his trousers which contain his leg, and his coatsleeve which contains his arm, have been torn. The consequences of holding this are so serious, and may be very probably so oppressive, that I at least must respectfully dissent from a judgment which establishes it." In the court below the two members of the court agreed with the views expressed by the Lord Chief Justice. See opinions of Pollock, B., and Lopes, J., in 11 Q. B. Div. 712.

The court said: "In view of the annoyance and expense incident to the stoppage of the defendant's trains, it was just to open the doors of escape and permit the defendant at once to acquire title to the land, and thus avoid the delay incident to other proceedings for that purpose; but it was notwithstanding optional with the defendant to comply with the condition. The plaintiffs could not require it, but they would be bound by the judgment, and the defendant become on performing the condition purchaser of the land, with rights not inferior to those obtained by appraisement and payment of damages under the statute. * * * It is however objected that the plaintiff should have in this action no damage save for the actual trespass to the time of bringing the action, and should by successive actions have accruing damages for the maintenance of the railroad subsequent to the commencement of the action, or only nominal damages for the original trespass, until by the action of ejectment he has possession, and that for damages in the depreciation in value above referred to, he should wait until the defendant institutes proceedings to acquire title under the statute relating to that matter. If that is so, a court of equity is powerless, the multiplicity of actions not prevented, and a new and altogether useless litigation encouraged for no good purpose. I think the objections not tenable, and discover no reason for denying any relief to which the plaintiff would in any action or before any tribunal be entitled. The defendant has for the purposes of its incorporation, entered upon an exclusive and permanent occupation of the land, embedded therein its tracks, and is enjoying it as fully as if the right to do so had been legally secured. In that event compensation must have been made to the owner, and the two things concurring, the title of the defendant would be complete and the owner legally❘erable. satisfied. The same result should be reached in this proceeding. The parties are before the court; they have had their day. Those matters have been passed upon which might have gone before commissioners under the statute, and for every trespass the plaintiff may recover in this action."

This case is not in conflict with Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98, as the plaintiff is not bound to proceed in equity, and it is only when he invokes the aid of an equitable tribunal that the court will compel him to accept his permanent damages and grant and release his rights to the defendants. It is entirely proper for a court of equity to grant this relief, for the defendant could obtain the same result by proceeding under the statute to condemn the plaintiff's property. The measure of damages in such a proceeding and the rights secured by the defendant would be precisely the same. However it may be safely asserted that the plaintiff, suing in equity, would not be compelled to accept such damages and convey and release his rights where the defendant would not have the right to seize the property of the plaintiff under the right of eminent domain. This

What future damages can an injured party recover? This is an important inquiry where the law requires him to have all his damages assessed in one suit. The rule which is sustained by the authorities is that future damages must be reasonably certain to be recovStrohm v. N. Y., L. E. & W. R. Co., 96 N. Y. 305; Curtis v. R. & S. R. Co., 18 id. 541; Fyler v. N. Y. C. R. Co., 49 id. 45; Lincoln v. S. & S. R. Co., 23 Wend. 425-435; Piller v. S. P. R. Co., 52 Cal. 42.

In the case first cited it was held erroneous to allow a physician to testify what a patient may in the future suffer from an injury. The court said: "It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, not even that they are likely to so develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury."

An interesting question will arise when the victim of some injury, who has recovered in an action his present and all future damages which were reasonably certain to flow from the injury, suffers further damages from the same cause of such a nature that they. could have been recovered in the first action had they been susceptible of legal proof, and then in a second action seeks to recover such unforeseen damages. The doctrine already adverted to would seem to be fatal