statute of limitation as a bar, claiming that the cause of action was for the original trespass and not for the subsequent flooding of the mine which constituted only an element of damages; that these damages were so connected with the original trespass and so depended thereon, that they did not constitute an independent cause of action. The Supreme Court unanimously concurred in this view, holding that the statute of limitations barred the right to recover the damages sued for. The whole opinion should be carefully read; but some portions deserve especial notice. The learned chief justice says: "The case before us was one of admitted trespass, from which immediate damage resulted. Had suit been brought at that time all the natural and probable damages to result from the wrongful act would have been taken into account, and the plaintiff would have recovered for it. But there was no continuous trespass from that time on. The defendant had built no structure on the plaintiff's premises, was occupying no part of them with any thing it had placed there, and was in no way interrupting the plaintiff's occupation or enjoyment. All it had left there was a hole in the wall. But there is no analogy between leaving a hole in the wall on another's premises and leaving houses or other obstructions there to incumber or hinder his occupation. The physical hindrances are a continuance of the original wrongful force, but the hole is only the consequence of a wrongful force which ceased to operate the moment it was made." The words italicised clearly express a distinction which will be referred to hereafter. The chief justice continues: "If therefore the plaintiff had brought suit more than two years after the original trespass, and before the flooding of its mine by water flowing through the opening had begun, and if the statute of limitations had been pleaded, there could have been no recovery. The action for the original wrong would then have been barred, and there had been no repetition of the injury in the meantime to give a new cause of action. The mere continuance of the opening in the wall could not be a continuous trespass. Lloyd v. Wigney, 6 Bing. 489. "The right of action, if any, for which the plaintiff can complain must therefore arise from the flowing itself, as a wrongful act, there being no longer any action for the original breaking, and uo continuous acts of wrong from that time until the flowing began. But damage alone does not give a right of action. The wrong then must be found in leaving the opening unclosed and leaving the water to flow through. It must therefore rest upon an obligation on the part of the defendant, either to close the opening, because persons for whose acts it was responsible had made it, or to restrain water which had collected on its own premises from flowing upon the premises of the plaintiff to his injury. The latter seems to be the ground upon which the plaintiff chiefly relles for a recovery. In the argument made for the plaintiff in this court, stress is laid upon the fact that the damage which has actually resulted from the flowing could not have been anticipated at the time of the original trespass, and therefore could not then have been recovered for. This consideration it is urged ought to be decisive. But while we agree that it is to be considered in the case for what it is worth, it is by no means necessarily conclusive. The plaintiff must fix some distinct wrong upon the defendant within the period of statutory limitation, or the action must fail; and there is no such wrong in this case, unless the failure to prevent the flowing constitutes one. The original act of wrong is no more in question now, after having been barred by the statute, than it would have been if damages had been recovered or settled for amicably." To same effect are Clegg v. Dearden, 12 Q. B. 576; Williams v. Pomeroy Coal Co., 37 Ohio St. 583; and Kansas Pacific Railway Co. v. Mihlman, 17 Kan. 224. In the first case Lord Denman said: "The gist of the action as stated in the declaration, is the keeping open and unfilled up of an aperture and excavation made by the defendant into the plaintiff's mines, By the custom the defendant was entitled to excavate up to the boundary of his mine without leaving any barrier, and the cause of action therefore is the not filling up of the excavation made by him on the plaintiff's side of the boundary and within their mine. It is not as in the case of Holmes v. Wilson, 10 Ad. & El. 503, a continuing of something wrongfully placed by the defendant upon the premises of the plaintiff. Nor is it a continuing of something placed upon the land of a third person to the nuisance of the plaintiff, as in the case of Thompson v. Gibson, 7 Mees. & W. 455. There is a legal obligation to discontinue a trespass or remove a nuisance, but no such obligation upon a trespasser, to replace what he has pulled down or destroyed upon the land of another, though he is liable in an action of trespass, to compensate in damages for the loss sustained. The defendant having made an excavation and aperture in the plaintiff's land was liable in an action of trespass, but no cause of action arises from his omitting to re-enter the plaintiffs' land and fill up the excavation." The case of Kansas Pacific Railway v. Mihlman, is very similar to these two cases already referred to. The question did not arise under a plea of the statute of limitations, but that does not affect the case as an authority on this point. It will be an artificial and unnecessary distinction to make to discuss these cases in two separate classes, based upon the mere fact, that in one class future damages were claimed to be outlawed, and in the other that a recovery had already been had for the wrong from which such future damages subsequently flowed. When the future damages are so connected with the original wrong, that no cause of action can be predicated upon them alone, then the cause of action is gone, and such damages cannot be recovered, whether the cause of action is outlawed or there has been a recovery of some damages because of such wrong. In the case last cited, the defendant had constructed a ditch on the property of the plaintiff, and damages because of the trespass had been recovered. Subsequently another action was brought to recover the damages resulting from such ditch, accruing after the first suit, and which could not have been foreseen. The court held that the first recovery constituted a complete bar to the action, saying: "On the other hand, as we have already stated, where the original act is unlawful and an invasion of the plaintiff's rights, the cause of action dates from the act, and a new cause does not arise from new damages resulting therefrom. ** * Counsel here would make the gist of the action the continuance of the ditch, as there the continuance of the excavation; but the fact is, the wrong was done when the ditch was dug, and an omission to re-enter and fill up the ditch was a breach of no legal duty. There are cases in which the original is considered as a continuing act, and daily gives rise to a new cause of action. Where one creates a nuisance and permits it to remain, so long as it remains it is treated as a continuing wrong and giving rise over and over again to causes of action. But the principle upon which one is charged as a continuing wrong-doer is that he has a legal right, and is under a legal duty to terminate the cause of the injury. As to any thing upon his own land, a party has a right to control and remove it, and if it is so much of an injury to his neighbor's rights as to amount to a nuisance, he is under a legal obligation to do so, but as to that upon his neighbor's land he has no such right and is under no such duty." It is apparent from this and other portions of the opinion, that the court would have reached the same result, if the trespass had been the erection of a structure on the premises of the plaintiff. This is opposed to the cases of Holmes v. Wilson, 10 A. & E. 503; Cumberland v. Hutchins, 65 Me. 140, and similar cases. The court in Kansas Pacific Railway v. Mihlman, say further on this point: "It is true the books speak of such a thing as a continuing trespass. In 1 Addison Torts, 332, it is said that if a man throws a heap of stones or builds a wall or plants posts or rails on his neighbor's land, aud then leaves them, an action will lie against him for trespass, and the right to sue will continue from day to day, until the incumbrance is removed. And in the case of Holmes v. Wilson, 37 Eng. C. L. 273 or 10 A. & E. 503, it appeared that the trustees of a turnpike, to support it built buttresses on the plaintiff's land. He brought an action and recovered for the trespass. He then notified them to remove the buttresses. Failing to do so he sued again, and it was held that the action would lie. It seems to us very doubtful whether this ruling can be sustained upon principle. *** If the company had entered to fill up the ditches could not Mihlman have maintained his action for that as a trespass? It seems so to us unquestionably. And it seems that the rule would be the same in case of such trespass as suggested in Addison, as the building of a wall or the heaping up of a pile of stones. Hence we doubt the doctrine as stated by him and as decided in Holmes v. Wilson." If the trespass is a continuing one then a recovery must be limited to the damages which have already been sustained, and the first action is no bar to the second, nor that to a third and so on, so long as the trespass continues. Each day's continuance of the trespass gives a new and independent action. Therefore the expiration of a period of time since the inception of the trespass, sufficient to bar a recovery for that trespass, will not bar the right to recovery of future damages resulting from the continuance of such trespass, provided the damages flow from a trespass that has not become outlawed. The cases that sustain this doctrine are Holmes v. Wilson, 10 Ad. & El. 503; Cumberland, etc., v. Hutchings, 65 Me. 140; Adams v. Railroad Co., 18 Minn. 260; Troy v. Railroad Co., 23 N. H. 83; Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; Anderson R. R. Co. v. Kernodle, 54 Ind. 314; Esty v. Baker, 48 Me. 495; Russell v. Brown, 63 id. 203; Bowyer v. Cook, 4 M. S. & L. 236; Ford v. C. & N. N. R. Co., 14 Miss. 609; Carl v. S. & F. L. R. Co., 46 Wis. 625; Blesch v. C. & N. W. R. Co., 43 id. 183; Thompson v. Morris Canal & Banking Co., 17 N. J. L. 480. In Holmes v. Wilson, it appeared that a turnpike company had built buttresses on plaintiffs' land for the support of its road. Plaintiff recovered damages for the trespass. A second action having been brought a recovery in the first was relied on as a defense. The court held that it established no defense to the action which was to recover damages for a subsequent trespass, each day's continuance of the structure unlawfully on plaintiff's land constituting a distinct and independent trespass, for which a new action would lie. So in Cumberland, etc., v. Hutchins, the proof showed that the defendant had wrongfully filled up a canal. It was held that he was under a legal obligation to remove the obstruction, and that every day he suffered it to remain he was guilty of a new trespass, and therefore a recovery was not a bar to an action for future damages. This distinction is recognized in Nat. Copper Co. v. Minnesota Mining Co., and Kansas Pacific Railway v. Mihlman. But in this last case the court intimated that it did not consider the mere omission to remove a structure placed on the land of another as a continuing trespass, for the reason that the trespasser had no right to enter and remove his erection. The court said with reference to Holmes v. Wilson, 10 A. & E. 503, that the plaintiff should have recovered in the first action as damages the expense of removing the structure, and that that should bar his right to maintain a further action, because of its maintenance. In the first case, Nat. Copper Co. v. Minnesota Mining Co., the chief justice says on this point after referring to the authorities: "The principle of decision in all these cases is clear and not open to question. In each of them there was an original wrong, but there was also a persistency in the wrong from day to day. The plaintiff's possession was continually invaded and his rights to the exclusive occupation and enjoyment of his freehold continually encroached upon and limited. Each day therefore the plaintiff suffered a new wrong, but no single suit could be made to embrace prospective damages, for the reason that future persistency in the wrong could not be legally assumed." The eminent jurist's reason for this doctrine is not a very satisfactory one. The writer would suggest that no single suit could be made to embrace prospective damages, because the damages which would be sustained by the continuance of the trespass the next day, are to be assessed in a new action, which the new wrong gives to the plaintiff, and it would be grossly unjust, even as against the wrong-doer, to compel him to pay the same damages twice. The writer also desires to enter now and here his protest against the reasoning and doctrine of many of the cases based upon the permanency of the thing which causes the future damage. In Cumberland, etc., v. Hutchings, the court recognized and followed the distinction repeated in Kansas Pacific Railway Co. v. Mihlman, between the mere excavation of a ditch, on the premises of another and the placing of something thereon. The injury complained of was the filling up of a canal. The court said: "The doctrine of all the cases is, that a recovery of damages for the erection of a building or other structure on another's land does not operate as a purchase of the right to have it remain there, and that successive actions may be brought for its continuance until the wrong-doer is compelled to remove it." The discussion of this question as to the effect upon the right to recover future damages, of the permanency of the thing producing the damage will be taken up in connection with the decision of the Indiana Supreme Court in City of North Vernon v. Voegler, supra. The decision in the judgment of the writer is indefensible on principle. The action was brought to recover damages sustained by the flooding of plaintiffs' property by surface water, which it was alleged that the defendant, the city of North Vernon, had gathered in one channel, and discharged upon the plaintiffs premises. The ground of complaint against the city was that it had so negli gently graded it streets, that the flooding and consequent damage resulted. The court decided that these facts constituted a good cause of action. One of the defenses set up was, that the plaintiff had already recovered damages for the flooding of the same property, because of the same negligence of the defendant in grading the same streets; that there had been no change whatever in such paving since said recovery, and the answer concludes as follows: "And is the grading of the same street, and the building of the same culverts, and the identical negligence and want of care and skill now complained of, that was complained of in the former action, and no other." The plea was held to constitute a good defense. The ground on which this ruling was based, was that the grading of the streets being permanent in its nature, all damages sustained thereby, whether past or prospective, must be recovered in one action, and that therefore a recovery in one action barred all further suits for damages, for the reason that there being only one cause of action the damages could not be divided, and assessed in different actions. The court said: "It is true in the present case as it was in the one referred to, that the improvement of the street was a permanent one, and as it was permanent, the cause of action was complete when the damages resulted, and the recovery must be not for part of the damages or for some damages, but for all the damages resulting from the wrong, which constituted the cause of action." tionable? Suppose surface water by means of that ditch is afterward discharged upon premises of auother, is the cause of action for digging the ditch or for throwing water by means of it on the plaintiff's property? Clearly the latter. After the discharge ceases, and the injury is complete, is it not plain that the maintenance of that ditch is lawful unless damages again result from it? And is it not equally plain than when new damages do flow from it, a new cause of action accrues to the plaintiff? And that this new cause of action is not for the original digging of the ditch, but for again casting water by means of it on the premises of the plaintiff? Suppose A. should dig such a ditch, and before any damage had resulted from it, should sell his property to B., who should suffer such ditch to remain, there could be no possible doubt about B.'s liability for the damage done by water discharged through that ditch on the property of another. Why then is he liable? Simply because the law says that he shall not discharge surface water by means of a ditch upon the property of another, and not because the ditch was a nuisance which he has continued. This is the cause of action. Therefore every new discharge creates a new cause of action. Take the case of the removal by the owner of one of two adjacent tenements of the lateral support of the soil of his neighbor. No right of action then accrues. But if damage afterward ensues a cause of action arises. If subsequently new damage results, a new action is created. Why? Simply because the cause of action is not the removal of the lateral support, which is not wrongful in itself, for then only one action could be maintained, but causing the fall of the adjoining property because of the failure to give it the lateral support which the law requires. These suppositive cases might be added to, but it is unnecessary to do so, to illustrate and enforce the argument. Now it is submitted that where the thing done is not actionable until damage results, as was clearly the case in City of North Vernon v. Voegler, the fact that the defendant intends to maintain the thing permanently cannot render it obligatory on the party injured to anticipate and recover all future damages in his first action, when but for such intention no such consequence would result. Can a person or corporation by an The whole trend of this opinion is to the effect, that simply because the thing which has caused and may cause damages is permanent in its nature, the party who has once been injured must recover in one action all his damage; not only that which has and may flow from the particular occurrence, but also all damage which may result from another occurrence growing out of the thing which is permanent. It is well settled that such permanency does not make it necessary for, or even give the right to the plaintiff, to assess future damages in one action where the continuance is a daily trespass or a nuisance. Why then should it, when the thing is not actionable in itself irrespective of damages? Certainly the first recovery is no bar to a second action for future damages if the plaintiff is not bound to have all his damages assessed in the first action. Now, so far from being bound so to do, we submit that on principle he has not even the right to have this done, and that it would be error to allow such damages to be taken into consideration. Let us analyze the question, and determine the true doctrine on principle. If a thing is done which is lawful in itself, and not actionable until damages have resulted, it is clear that the cause of action is not the doing of the thing which causes the damage, but the doing of that thing conjoined with the damage. If then the cause of action is not the doing of that thing which occasions loss, but is made up of that element and the further element of damages, and never comes into existence until the damage results, and owes its existence to such damage, how can the cause of action be more extensive or comprehensive than such damage? How can it embrace other damage than that which is connected with the particular occurrence which causes the damage? The thing was lawful, and not actionable until the party had suffered loss on account of it. To the extent of such loss, and to that extent only, is it actionable; beyond such damage the thing is as law-nouncing in advance that he or it intends to repeat ful as it was before the damage resulted. When a subsequent loss occurs it again becomes unlawful and actionable to that extent. There is manifest difference between such a case and the case of a trespass which is actionable immediately irrespective of damage, and for which at least nominal damages may always be recovered without the delay of a single day. | Where the thing done is not actionable in itself, then no damages can be recovered, not even nominal, until damages have actually been occasioned thereby. In such a case the cause of action is the damage flowing from the act lawful in itself, and not the doing of such act, while in the other case the cause of action is the wrongful act itself independent of damages. As damages, and not the act, give the right of action, how can such action include any further damages than those which have created the cause of action? If it be said in reply, as in a certain sense it may be said, that the cause of action is the union of the two elements, injury and damage, actually sus tained, then it is answerable that the recovery cannot be more extensive than either; it cannot include damages as to which there is no cause of action. Without the damage sustained the action has no support. Has it then any support beyond such damage? It must, if future damages either must be recovered in that action or the right to recover them forever barred. Suppose a person constructs on his own property a ditch, will any one pretend that that act is ac the wrong, or suffer it to be repeated, compel another to submit to the repetition, and accept as his only redress the inadequate remedy of anticipating and recovering all future damages, even to the "crack o' doom?" It is a strange doctrine that the manifestation of a purpose to, persist in wrong doing should deprive the party injured of causes of action that he would have, but for the manifestation of such purpose. We have taken the view of the question most favorable to the decision of the court in this case; and we submit that we have shown that even though the thing is clearly permanent, and is so understood by all parties, the party injured is not obliged to recover all future damages in his first action. But what was there in the case to justify the argument that the thing which had occasioned damage would be permanent? The fact that the grade of the street was permanently fixed would not be decisive, as the recurrence of the flooding might be prevented without altering the grade, and moreover, what right had the court to assume that the grade would remain unchanged after the negligence of the city had been established? The more rational assumption would be that the city would rectify its mistake, and not continue in a course destructive to the rights of others. Self interest as well as justice would prompt it to pursue this line of policy. Since writing this criticism on City of North Vernon v. Voegler, the case of Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98, has come to the notice of the writer. The assault in this case on the unsoundness of the reasoning and decision of the court in the former case is precisely the same as that made by the writer, who is not now so badly frightened at his temerity as before pursuing the opinion in the case in the New York Court of Appeals. Earl, J., says: "But I am of opinion that that question is clearly unsound as to the precise question adjudged. | What right was there to assume that the street would be left permanently in a negligent condition, and then hold that the plaintiff could recover damages upon the theory that the carelessness would forever continue? A municipality or a railroad corporation under proper authority may erect an embankment in the street, and if the work be carefully and skillfully done, it cannot be made liable for the consequential damages to adjacent property. But if it be carelessly and unskillfully done it can be made liable. It may cease to be careless or remedy the effect of its carelessness, and it may apply the requisite skill to the embankment. and this it may do after its carelessness and unskilfulness and the consequent damages have been established by a recovery in an action. The moment an action has been commenced shall the defendant in such a case be precluded from remedying the wrong? Shall it be so precluded after a recovery against it? Does it establish the right to continue to be a wrong-doer forever by the payment of the recovery against it? Shall it have no benefit by discontinuing the wrong, and shall it not be left the option to discontinue it? And shall the plaintiff be obliged to anticipate damages with prophetic ken and foresee them long before, it may be years before they actually occur, and recover them all in his first action? 1 think it is quite absurd and illogical to assume that a wrong of any kind will be forever continued, and that the wrong-doer will not discontinue or remedy it; and that the convenient and just rule sanctioned by all the authorities in this State, and by the great weight of authority elsewhere is to permit recoveries in such cases by successive actions until the wrong or nuisance shall be terminated or abated." assert that the mere negligence was the cause of action? Such a doctrine carried out to its inevitable consequence would bar the recovery of damages occurring after the lapse of a period sufficient to outlaw the original negligence, even though no complete cause of action had ever accrued during that time, for it rests upon the assumption that negligence was actionable per se. Under such a doctrine a cause of action might be outlawed before it ever came into existence. Permanent negligence renders it necessary to recover all damages in one suit. Therefore if a city announces that a ditch is to be left unguarded forever, the party who has been injured by it must recover his future damages, which may arise from further injury by it, in the same action. How could they be fixed, or even remotely estimated? There would be no basis on which damages could be calculated, and hence they could not be recovered. According to Judge Elliott's doctrine, if the same person fell into the same ditch a second time, without fault on his part, after he had recovered damages for the first injury, he would be absolutely without remedy. The monstrous absurdity and perversion of justice to which this doctrine, based on supposed or real permanency of the cause of damage, inevitably leads, are so palpable as to require no comment. The learned judge fancies he sees an analogy which sustains his views. He says: "The case before us is closely analogous to the seizure of land under the right of eminent domain for railroad or highway purposes, and in all such cases it is held both by the English and the American courts that all damages, present and prospective, must be assessed in one proceeding." Now there is not a particle of analogy between such cases and the case before him for decision. When property is taken under an exercise of the power of eminent domain there is no wrong. The act which invades the plaintiff's right is lawful. It is known that that act is to be permanent, and that the invasion of plaintiff's property by that act, being lawful, the defendant can never be called to account therefor after having made just compensation. This act, though against the will of the owner, being lawful, he must then collect all damage which will flow from it or be forever barred. But when the act complained of is unlawful or becomes unlawful by damage flowing from it, a new cause of action is created every time damage is occasioned, because the defendant has not and never can have a right to damage the plaintiff by such act. When property is condemned for the benefit of the public, the law makes lawful the invasion of the owner's rights, which but for such public benefit, would be unlawful. As the act is lawful, no action can be predicated on it, and the compensation which the law requires to be made must be made as the statute points out, and not by action. The two cases are as widely separated, so far this question is concerned, as If, as is manifest, the recurrence of damages arising from an act not actionable in itself gives a new cause of action, and such new cause of action is effectually destroyed because the wrong-doer announces or it is clear that the cause of action will be permanent, why should not the permanency of the cause of damage defeat future actions where each day's continuance of the cause constitutes a new cause of action, as in the case of trespass? But it was held in Holmes v. Wilson, 10 Ad. & El. 503, that future actions would lie in a case of a continuing trespass, although it was clear that the casc would be as permanent as the cause in City of North Vernon v. Voegler, the continuing trespass being the erection and continuance of buttresses for a road on the plaintiff's property. Was not that as permanent in its nature as the grading of the street in the Indiana case? And yet Judge Elliott says: "Where the cause of action is the negligence and unskilfulness of the officers of a municipal corporation in the improvement of a street, the injury is complete and permanent, constituting but one cause of action; and in a suit on that cause of action all damages present and prospective may be recovered, and for fresh damages resulting from the improvement a second action will not lie." This is extremely illogical. The cause of action was not simply the naked negligence of the city in grading its streets, but the causing of damage by reason of that negli-dition causes damage a new actionable injury is occagence. Every time negligence causes damages there is a new cause of action. The city might be ever so neg. ligent in this or any other particular, but until damage had resulted therefrom no cause of action therefor could accrue against it. Is it not then absurd to "thrice from the center to the utmost pole." Again Judge Elliott wanders from the path of principle. He says: "The complaint of the appellee, as we have seen, is based upon the negligence of the corporate officers in improving a street, and the improvement is a permanent one, so that the tort which formed the basis of the action was complete when damages resulted." But the wrong consisted, not in negligently grading the street, but in suffering such negligence to cause damage. The injury was done, not by the grading of the street, but by its condition after the grading was complete. Every time that con sioned, and a new cause of action arises. In fact there is no difference in principle between the continuance of a trespass and the continuance of negligence, except that the bare continuance of the former will per se give a new cause of action, while the persistence in the same negligence is not actionable unless it causes new damage. Right here a distinction should be pointed out which it is very important should not be lost sight of. It is not every kind of future damage in cases like those now under discussion which can be recovered in a new action. If the damages are connected with the first cause of action, they must be recovered in that action or never, even though they cannot be foreseen. Suppose in the case we are reviewing the first flooding of plaintiff's property had caused some bodily injury to the plaintiff, which subsequently and after judgment in the first action, developed into a serious disorder, permanently impairing his health; and that the suit was brought to recover such future damage, there could be no question but that the first recovery would constitute a perfect defense, because these damages are inseparably connected with the occurrence which gave the plaintiff his cause of action. But if the premises are again flooded, is it not apparent that the action brought to recover the damages resulting from such subsequent flooding stands upon an entirely different basis? and that the plea of a former recovery has no application? This distinction is alluded to in Mitchell v. Darley Main Colliery Co., L. R., 14 Q. B. Div. 125, where Brett, M. R., said: "Where an excavation has been made and subsidence has taken place, it may be true that for all the effects both existing and prospective, of that subsidence, the person injured ought to sue at once, and I incline to think that he ought. It is not necessary to determine that in this case, but I am strongly inclined to think that he ought. But what is to be done as to the new subsidence? * * Therefore whilst I am strongly of opinion, although it is not necessary to decide it in this case, that in respect of the same subsidence the jury ought to take into account not only the actually existing damages, but also the prospective damages, which may be the result of that subsidence, yet I think that where there is a new and further subsidence that is a new cause of action." * The injustice of the doctrine enunciated in City of North Vernon v. Voegler, requiring future damages to be recovered where the cause of damages is permanent, is palpable, for such damages could not be recovered, as they are not susceptible to legal proof, for they must be at least reasonably certain or probable to warrant a recovery of them. Judge Elliott, to support his views, cites: Town of Troy v. Cheshire R., 23 N. H. 83; Fowle v. New Haven, etc., Co., 112 Mass. 334; Powers v. Council Bluffs, 45 Iowa, 652; S. C., 24 Am. Rep. 792; Adams v. Hastings, etc., Co., 18 Minn. 265, and Seely v. Alderny, 61 Penn. St. 302, among other cases which require no consideration. The case of Bizer v. Ottumwa Hydraulic Power Co. (Iowa), 30 N. W. Rep. 172, is to the same effect as the Indiana case, the court holding that damages sustained by the unlawful erection of a dam, permanent in its nature, must all be recovered in one action. In other words, the court decides that the wrong-doer, by making palpable his intention to persist in wrong-dning, thereby secures to himself the indefeasible right to continue his nuisance upon paying only such damages as have actually accrued, and can be shown to be reasonably certain to accrue in the future, although as a tort-feasor he can claim no indulgence from the law, and although it is extending an unprecedented indulgence to him to suffer him to continue a wrong on paying such damages as are necessarily inadequate in nearly every case, because no human prescience can foresee all the natural future consequences of an act with that clearness of vision absolutely essential to warrant the consideration by a court or jury of such consequences in fixing future damages under the law, which requires them to be reasonably certain. If these decisions are sound then every private person may for his own private ends exercise the power of eminent domain by simply making his appropriation of his neighbor's property or his invasion of his neighbor's rights permanent in its nature, and then paying the insufficient damages, which are all that can be established under the law before the claim for damages has been outlawed. Where the act or thing which causes damage is a nuisauce, the authorities speak but one language, and that is, that future damages cannot be recovered, but that every day's continuance of the nuisance is actionable. Whitmore v. Bischoff, 5 Hun, 176; Thayer v. Brooks, 17 Ohio St. 489; Herrington v. St. P. & L. C. R. Co., 17 Minn. 215; Dickinson v. C., R. I. & P. R. Co., 71 Mo. 553; Mahon v. N. Y. C. & H. R. R. Co., 24 N. Y. 658; Uline v. N. Y. C. & H. R. R. Co., 101 id. 98; Fell v. Bennett, 5 Atl. Rep. 17 (Penn. Sup. Ct.); Stadler v. Grieben (Wis.), 21 N. W. Rep. 629; Cain v. C., R. I. & P. R. Co. (Iowa), 3 N. W. Rep. 736. But see Ch. & E. 1. R. Co. v. Loeb (Ill.), 8 N. E. Rep. 463; Baldwin v. Okaloosa G. L. Co., 10 N. W. Rep. 317; Powers v. Council Bluffs, 42 Iowa, 642; 24 Am. Rep. 792. In fact it may be stated as an undoubted rule that the continuance of any act or thing which is actionable only when coupled with damages is actionable every time damages flow from it. Where water is diverted, every day's persistence in snch diversion gives a new action. Langford v. Owsley, 2 Bibb (Ky.), 215. So where the diversion of a stream causes land to be flooded annually, every new submergence gives a new action. Hoozier v. Hannibal, etc., 70 Mo. 145. Damming or obstructing water so as to cause damages by flooding property or injuring mills, etc., is actionable every time damage occurs. Plate v. N. Y. C. R. Co., 37 N. Y. 472; Mersereau v. Pearsall, 19 id. 108; Baldwin v. Calkins, 10 Wend. 169. This is the rule where damages are claimed for obstructing light by a permanent structure. Every day's obstruction may be redressed by action. Blunt v. McCormick, 3 Denio, 283. To same effect are Duryea v. Mayor, etc., 26 Hun, 120; Winchester v. Stevens' Point, 58 Wis. 350; Union Trust Co. v. Cuffy, 26 Kans. 754; Spilman v. Roanoke Nav. Co., 74 N. C. 675. The decision in the case of Powers v. Council Bluffs, supra, referred to in City of North Vernon v. Voegler, and cited therein to sustain the views of the court in that case, will constitute all the argument necessary to show the injustice and absurdity involved in such a doctrine. The action was for damages in negligently constructing a ditch, which caused an injury to plaintiff's land. The ditch was dug in 1860. Plaintiff was damaged in 1866, and subsequently from time to time. The court held that as the claim for the damage sustained in 1866 was outlawed, there could be no recovery, even for substantial damages sustained within the statutory time, for the reason that there was only one cause of action which comprehended all damages, those already suffered and those which might be sustained. Why? Because the ditch was permanent. The argument of the court is necessarily weak and inconclusive, as all argument in support of injustice must be. The court says: "The case does not differ so far as principles in question are concerned from any case where an injury has been received by one person from the culpable negligence or unskilfulness of another." But the reply to this argument is that the negligence causes daily damage. It is as though the carelessness of the defendant had its inception each day, for each day's continuance of it was as much a wrong as the original negligence. But this decision is too indefensible to need discussion to lay bare its unsoundness. GRAND FORKS, DAKOTA. GUY C. H. CORLISS. |
