Bowers v. Mississippi & Rum River Boom Co.

78 Minn. 398 | Minn. | 1899

START, C. J.¹

This is an action to recover damages which the plaintiff claims to have sustained by the act of the defendant in placing piling in the Mississippi river opposite his farm, whereby the water in the river was turned from its natural course, and carried upon and against his land, washing away the shores thereof. The answer admitted and alleged that in the year 1887 the defendant, in the exercise of its charter powers as a corporation engaged in the business of booming and driving logs, placed the piling in the river for the purpose of keeping floating logs off from the sand bars therein, but that the defendant removed the piling in 1895. It further alleged that on May 4, 1895, the plaintiff duly recovered judgment against the defendant for the same cause of action alleged in the complaint in this action, and that such judgment has been paid and satisfied. The reply denied that the judgment pleaded,as a bar was for the same cause of action as that alleged in the complaint herein. The trial court, at the close of the evidence, directed a verdict for the defendant, on the ground that the judgment in the prior action was a bar to this one, and, further, that the evidence was not sufficient to establish a cause of action against the defendant. The plaintiff appealed from an order denying his motion for a new trial.

If the former judgment is not a bar, the evidence, although conflicting, was sufficient to sustain a verdict for the plaintiff. The question, then, for our consideration, is whether the trial court erred in holding that the prior judgment was a bar to this action.

There was evidence, as to this question, tending to establish these facts: The defendant, in the year 1887, placed the piling in the river, and has ever since kept it there. The effect of this piling was and still is to turn the water, ice, and logs against plaintiff’s land, whereby its shores were and are cut and washed away. The plaintiff, on February 5, 1895, brought an action against the defendant to recover the damages sustained by him by reason of such acts of the defendant, and recovered a judgment therefor in the sum of $400, which is the prior judgment in question. It has been satisfied.' In the prior action prospective damages were not claimed nor assessed. It was established in that action, as the jury found, that four and one-half acres of the plaintiff’s land had been washed away by reason of the defendant’s wrongful acts prior to the commencement of this action, and the court instructed the jury that the measure of damages was “the difference between the actual value of the land as it was before the washing and as it now is with the washing away.” Since February 5, 1895, some four acres more of the plaintiff’s land have been washed away by reason of such piling being so maintained in the river, and this action is for the recovery of damages therefor.

The plaintiff was bound to recover in his 'first action all the damages to which he was entitled; and if he was then entitled to recover for all injuries, past, present, and future, to his land, by, reason of the acts of the defendant in placing and maintaining the piling in the river, the judgment in the prior action is a bar to this one; for the plaintiff, if such were the case, could not split up his cause of action, and recover a part of his damages in the first action, and then bring this action for the rest of them. The defendant claims that the first action was just such a case, and that the trial court correctly held the judgment to be a bar.

The test, whether an injury to real estate by the wrongful act of another is permanent in the sense of permitting a recovery of prospective damages therefor, is not necessarily the character, as to permanency, of the structure or obstruction causing the injury, but the test is whether the whole injury results from the original wrongful act, or from the wrongful continuance of the state of facts produced by such act. 8 Am. & Eng. Enc. 687; Uline v. New York, 101 N. Y. 98, 4 N. E. 536; Valley v. Franz, 43 Oh. St. 623, 4 N. E. 88; Wells v. New Haven, 151 Mass. 46, 50, 23 N. E. 724. This last case refers to Fowle v. New Haven, 107 Mass. 352, relied upon by the defendant in this case, and indirectly disapproves it. The adjudged cases are agreed as to the abstract rule that, where the injury wholly accrues and terminates when the wrongful act causing it is done, there can be but one action for the redress of the injury. But, where the injury is in the nature of a continuing trespass or nuisance, successive actions may be maintained for the recovery of the damages as they accrue. In the application of the rule, however, the authorities are somewhat conflicting.

Fortunately, we are relieved from any uncertainty as to the application of the rule to the facts of this case by the decisions of this court; for they conclusively establish the proposition that the acts of the defendant, in placing and maintaining the piling in the river, whereby the water, logs, and ice were driven upon the shore of the plaintiff’s land, were in the nature of a continuing trespass or nuisance, and that successive actions may be brought for the damages as they accrue. Harrington v. St. Paul & S. C. R. Co., 17 Minn. 188 (215); Adams v. Hastings & D. R. Co., 18 Minn. 236 (260); Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41, 11 N. W. 124; Byrne v. Minneapolis & St. L. Ry. Co., 38 Minn. 212, 36 N. W. 339; Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 39 N. W. 629; Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 71, 47 N. W. 455. The facts in these cases, except that of Byrne v. Minneapolis & St. L. Ry. Go., are similar. In each case the railway company built and maintained its roadbed, upon which to operate its cars, in a public street or highway, upon which the plaintiff’s land abutted, and it was held that the acts of the defendant were a continuing trespass or nuisance, for which successive actions could be. brought. The. question is tersely and clearly discussed, and directly decided, in the last case cited. The satisfaction of the judgment in the first action brought by the plaintiff to recover the damages already accrued was not a purchase of the right to continue the trespass or nuisance, for it was not the equivalent of a judgment in condemnation proceedings. Lamm v. Chicago, St. P., M. & O. Ry. Co., supra.

The defendant seeks to distinguish its case from the cases in this court which we -have cited, on the ground that it was authorized by law to place and maintain the piling in the river to facilitate the floating and driving- of logs therein, and that no part of the piling was on the land of the plaintiff, and no negligence in the premises on its part is claimed. All these facts may be conceded, and still the act of the defendant in maintaining the piling be a continuing nuisance as to the plaintiff. The obstruction was lawful as to the public, but the legislature could not authorize the defendant to maintain it as against a private party whom it injured. Hueston v. Mississippi & R. R. Boom Co., 76 Minn. 251, 79 N. W. 92. The fact that the obstruction did not physically touch the plaintiff’s land is immaterial; for while the trespass or injury is not direct, but indirect, the plaintiff’s damages are just as great as if some part of the obstruction rested on his land.

In the case of Byrne v. Minneapolis & St. L. Ry. Co., supra, the cause of the injury to the plaintiff’s land was the construction and maintenance of the defendant’s roadbed, no part of which was on the plaintiff’s land, so as to obstruct a natural water course. This was held to be a continuing nuisance, for which successive actions could be maintained. See also Jungblum v. Minneapolis, N. U. & S. W. R. Co., 70 Minn. 160, 72 N. W. 971. In the case of Adams v. Chicago, B. & N. R. Co., supra, the defendant, by virtue of an ordinance of the city of Winona, lawfully constructed and operated its railway, without negligence, in and along- a public street of the city upon which the plaintiff’s land fronted, no part of which was physically touched by the railway, but it was injured thereby, and it was held that the measure of damages was the depreciation of the rental value of the land to the commencement of the action.

The act of the defendant in the case at bar in placing and maintaining the piling in the river was, whatever it may have been as to the public, as to the plaintiff á continuing trespass or nuisance, and he was entitled to bring successive actions to recover his damages as they accrued. It follows that the trial court erred in holding the former judgment a bar.

Order reversed, and new trial granted.

1 BROWN, J., took no part.