Powers v. City of Council Bluffs

Adams, J.

No suit could have been maintained until some actual injury was caused to the plaintiff by the action of the water, resulting from the improper construction of the ditch.' Washburn on Easements and Servitudes, 591. But in 1866, if not earlier, the plaintiff’s premises began to be injured,' and he then, of course, had a right of action. The only ques *654 tion in this case is as to the character of the damage. Was it as it accrued from day to day new damage? If so, the plaintiff was entitled under the evidence to recover some damages, although his right of action as to a part of the damages which he had sustained might be barred. We have to distinguish, then, between what must be regarded as original damages and what may be regarded as new damages.

j. damages: nuisance i continuance. In 3 JBlack. Com., 220, it is said that every continuance of a nuisance is held to he a fresh one, and that, therefore, a fresh action will lie. In Staples v. Spring et al., 10 Mass., 72 , action was brought to recover for damages which, it was alleged, the plaintiff had sustained by reason of his land being overflowed by defendants’ mill-dam. It was held that, while plaintiff was barred from recovering for damage caused by the erection of the dam, he might recover for damage caused by its continuance.

In McConnell v. Kibbe, 29 Ill., 483 , the same doctrine is recognized. The defendant owned the lower story of a building, the plaintiff the upper stories. The defendant removed in his story a partition brick wall, whereby the plaintiff’s part of the building was injured. Walker, J., said: “The continuance of that which was originally a nuisance is regarded as a new nuisance.”

As, however, the suit was brought for the creation of the nuisance and not its continuance, it was held that plaintiff could not recover, tlié cause of action for the creation of the nuisance having become barred.

In Bowyer v. Cook, 4 Manning, Granger and Scott, 236, the plaintiff, having previously recovered against the defendant for placing stumps and stakes on his land in a ditch, brought suit for continuing them in the'ditch. It was held that he could recover.

In Holmes v. Wilson et al., 10 Adolphus and Ellis 503, the defendants, as trustees of a turnpike road, had built buttresses to support it on the plaintiff’s land. Although the plaintiff had already recovered for the creation of the nuisance, it was held that he might recover for its continuance.

*655 The dividing line between the cases above cited and those in which the damages are .considered as having all accrued at once as a part of the original injury is not always clearly distinguishable.

In the Town of Troy v. Cheshire Railroad Co., 3 Foster (N. H.), 83, the defendant had built its road partly over the highway. "While it was held that plaintiff could recover only for the damages which had been sustained at the time of the commencement of the suit, yet it was considered that all the damages which plaintiff had sustained, or could sustain, accrued when the defendant’s road was built, and that only one recovery could be had. This case is similar to the one last above cited, but distinguishable from it. The difference, however, consists in the fact that the railroad bed was deemed a permanent structure, in such sense that it was not to be presumed that the company would remove it. The turnpike buttresses were not of such character. So, too, in the case where the defendant had placed stumps and stakes in plaintiff’s ditch, the obstruction was not permanent.

In-the Town of Troy v. Cheshire Railroad Co., above cited, Bell, J., said: “ 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, there the damage is an original damage and may be at once fully compensated.”

The principle thus stated is sufficient to enable us to thread our way through any apparent difficulties which surrounded our path. In the light of it we can see that in a case of overflow from a mill-dam the injured party.should be allowed to maintain successive suits. Somewhat depends on the way the dam is used. The injury, therefore, is not uniform. But, what is of controlling importance, the dam if not maintained will go down, as surely as the sun will go down, and the nuisance of itself will come to an end. Its duration will be determined by freshets and other forces which are contingent and, therefore, incalculable. It may, indeed, be so built that it should be regarded as permanent. In such case it is said that *656 the damage should .be considered and treated as original. The Town of Troy v. Cheshire R. Co., above cited.

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.

If we apply the principle above stated to the case at bar we must hold that the damages were original. The plaintiff’s ground of complaint is that the ditch was improperly constructed. As constructed it resulted iu the excavation of the plaintiff’s lots. The damage consisted, not in excavating the lots, but in doing an act which resulted in their excavation.

The result too was a necessary one, the ditch remaining as constructed. The cause of the difficulty was a permanent one in that it would not grow less unless remedied by human labor. The case, therefore, is strictly within the rule applied in the Town of Troy v. Cheshire Railroad Co., above cited. Nor does the rule afford any difficulty in the assessment of damages, which is another test for determining thé question under consideration, or rather the consideration of the difficulty of assessing damages is another way of applying substantially the same test. If the cause of the injury is permanent the damages can be foreseen and estimated. If the cause # ” I of the injury is not permanent, if it depends upon human .volition as the maintenance of a mill-dam, the damages cannot be foreseen and estimated. Where the buttresses were placed on the plaintiff’s land, in Holmes v. Wilson et al., above cited, the damages could not be foreseen and estimated. The defendants were trespassers, and, the structure not being necessarily permanent, it was not to be presumed that the defendants would continue the trespass. The presumption was that it would be discontinued. But there being no presumption as to the.time when it would be discontinued the damages could not be foreseen and estimated.

The same principle lies at-the foundation of the dictum in McConnell v. Kibbe, above cited, where the defendant owned *657 the lower story and the plaintiff the upper stories of a house, and the defendant removed a partition brick wall which was necessary for support. It could not be presumed that the ■ defendant would allow the superincumbent stories to fall. It was to be presumed, therefore, that he would arrest the difficulty. With such a presumption the damages could not be foreseen and estimated.

When the fall in the stream in question had moved back • from the county ditch to the plaintiff’s lots and the creek ditch began to deepen and widen along those lots as it had been doing for six years on the land below, no especial foresight, we apprehend, was needed to predict the result. At all events it must be assumed that that may be foreseen which results from the ordinary and constant forces of nature.

The plaintiff’s damage was susceptible of immediate estimation. No lapse of time was necessary to develop it. It was the difference between the value of his 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. To reach this value, regard might be had to the reasonable cost of the remedy for the trouble, if the cost would not be greater than the probable damage which would ensue if no remedy were applied. . The remedy, whether a wall or something else, it was the plaintiff’s privilege to apply. The city could not do it better than he, and if the proper remedy was the erection of a wall on the plaintiff’s’premises, as the evidence tends to show, it was not the province of the city to apply it.

The case does not differ, so far as the principles in question are concerned, from any case where an injury has been received by one person from another’s culpable negligence or unskillfulness. Its peculiar feature consists in the fact that the negligence complained of was injurious only through the gradual operation of an element of nature. But that element, the water, was a permanent and calculable force. If a mechanic constructs a building so unskillfully that it gradually falls down, no one would claim that the owner could have successive actions for damages during the fall. While the force and effects of the water in the case at bar could not, *658 perhaps, be quite as definitely predicted as the force and effects of gravitation in the case supposed, the difference, if any, is one of degree and not of kind.

2.. — : -: actiMisíve We have seen no case where successive actions have been allowed for damages resulting from negligence combining with a natural cause, however gradual the operation of that cause. Successive actions are allowed only where the defendant is continuously in fault. It may be a fault of commission or omission, but if the latter it must be something else than an omission to repair or arrest an injury resulting from negligence or unskillfulness, unless the remedy is to be applied upon the wrong-doer’s premises.

The appellant, it is true, contends that the fault of the city did not consist simply in negligence or unskillfulness; that the construction of the ditch was unauthorized. Such, we think, however, is not the fair import of the record. The relinquishment of the right of way executed by plaintiff and others is in these words:

■ “ We the undersigned owners of property fronting on Green street, south side, hereby relinquish a right of way for Indian creek ditch.

“ Council Bluffs, July 20, 1860.”

It is claimed that a right of way was by the foregoing relinquishment in Green street, and not outside of it. Put in our opinion that is not the meaning of the instrument. Besides, if Green street was an established street, there was no occasion for the relinquishment of a right of way in it. If it was not an established street, then the city had no right to dig the ditch for its improvement, or for any other purpose which we can see, and what was done was ultra vires, and the case has no foundation.

The .only fault, then, of the city was its negligence or unskillfulness in the construction of the ditch, and the damages resulting therefrom must all be regarded as original damages.

It follows that the plaintiff’s cause of action accrued more *659 than five years prior to the commencement of the suit, and is barred by the statute of limitations.

Affirmed.