50 Mo. App. 414 | Mo. Ct. App. | 1892
— I. It will be observed from the statement, that the petition in.this cause is based on the successive destruction of plaintiff’s growing crops in the month of June for the years 1883,1884 and 1885, and for permanent injury to the land, and that there is but one count with the damages laid in a gross sum. Defendant contended below that the destruction of the crop in each year made a separate cause of action which, if united in the same petition, should be separately stated in separate counts. This point was made in the proper manner, but was overruled. The ruling was erroneous as was decided in Offield v. Railroad, 22 Mo. App. 607. Each destruction of a crop resulted in damages which must be brought separately (Van Hoozier v. Railroad, 70 Mo. 145), or, if united in one action, it must be counted on separately. We thought this position to be quite clear until we found it questioned in Bird v. Railroad, 30 Mo. App. 374. That criticism perhaps accounts for the ruling of the trial court in this case. But it is not well grounded. If it be conceded that the cause of action is the erection of the nuisance, in a case where the erection is on one’s own property, and not of itself an invasion of another’s right, yet the nuisance is considered as being newly erected at the time the injury happens. The action in such a case is never bottomed on the old or original erection, — for such original erection may be barred by limitation, but on its being maintained and continued at the time of the injury which, in theory of law, is a new erection or fresh nuisance. G-ould on Waters, sec. 412; Wood on Nuisances, sec. 865; K. P. Ry. Co. v. Mihlman, 17 Kan. 228.
So each separately defined injury being the subject of specific apportionment is a separate action, whether such injury happen once a year or more than once. Each separate injury is subject to its own period of limi
II. Defendant asked and was refused instructions on two theories of limitation; one that the cause of action stated in the amended petition accrued more than five years before bringing the suit; the other, the defendant had a right by prescription to maintain the embankment, it and its predecessors having maintained such embankment for more than ten years before bringing the suit. We will state our conclusion as to each of these pleas.
It seems definitely settled, upon authority, that where the nuisance consists of a work or erection, which Ls permanent in its character, and which is necessarily injurious, the whole injury arises generally upon the completion of the work, the entire damage, present and prospective, accrues at once, and is the subject of a single action which .must be brought within the period of limitation from the erection of the nuisance. Gould on Waters, sec. 416; Troy v. Railroad, 23 N. H. 83; Powers v. City of Council Bluffs, 45 Iowa, 652. And in such case the party erecting the nuisance (not his grantees or successors) is alone liable. Bisor v. City of
The nuisance here, as originally erected, was not necessarily injurious or permanent in character, nor was it originally, of itself, 'of such nature that it might not have been kept in such condition as not to have been the cause of damage. But defendant permitted it to take a permanent form by allowing the space or water way under the bridge to fill up so as to raise the bed of the stream above as well as under the bridge, until, finally, in June, .1883, defendant filled in the remaining space under the bridge and thereby made of the bridge a solid embankment. Up to the time of its becoming permanent, by filling up the space, it could not be said that it would be permitted to become so, and plaintiff could not be allowed to recover more than the damage done him prior to the time of bringing his suit. Any time after the channel of the creek began to fill up as a result of the lodging of debris under the bridge, and up to June, 1883, when it was filled in, there was no - evidence of its permanency, nor nothing to show that the railway companies would not clear it away and keep it cleared, or, if the bridge was too narrow to pass the water, to widen it. The wrong was upon defendant’s' own land and originally consisted in allowing the
But the latter considerations lose some practical importance in the condition of plaintiff’s case. His cause of action arising since June, 1883, as shown above, goes to the destruction of the beneficial use of the lands ■affected, for then the nuisance became permanent. His redress is for damage to his land. But he has been permitted to recover for the loss of successive crops •in addition to the loss of the land upon which he would have grown them, if he had not lost the use of the land. This he should not be permitted to do. Since the permanent establishment of the embankment in June, 1883, he has had but one cause of action, and that, as before stated, is for the loss of the beneficial use ■of his land. He sued specifically for such loss by ..setting it up in an amended petition filed in September, .1889, but at that time it was barred by the five years’ ¡statute of limitations, and should not have been allowed.
It does not, however, follow from this consideration that plaintiff should altogether fail in his action. "We have already seen that the action, as originally alleged, was not barred, and though it is for a less damage than he might have asserted; though it is not as comprehensive as were his rights at the time he instituted it, that fact will not debar him. Its only effect will be to conclude him from any further action, .as he will not be permitted to litigate now what he •should have asserted them; this action being res ¡adjudicaba to any future action based on the wrong done ,by this defendant with reference to this stream. Stodghill v. Railroad, 53 Iowa, 341.
III. Nor can the defendant make out a right to •maintain the nuisance by prescription. Time may transform that which was originally a nuisance into a
IY. If the channel of the creek, off of the right of way, was filled up when defendant became owner of the road, although caused by obstructions on its right of way at the bridge, yet if the removal of such obstructions by defendant would not have relieved such filling of the channel off of the right of way, defendant would not be liable for any injury resulting from such obstructed channel. For, in such case, the injufy would be attributable solely to the act of defendant’s predecessors, unaided by any act of omission or commission by defendant. Instructions 10 and 11 refused for defendant should, therefore, be given; and instruction, numbered 1, given for plaintiff, ought not to be so worded, as it seems to be near the close, as to make defendant hable for the act of its predecessors.
The judgment will be reversed, and the cause remanded.