Aрpellant, proprietor of the Merchants’ Hotel, in the city of St. Paul, commenced an action in the district court of Ramsey county in 1900 against the respondent corporation for the purpose of restraining аnd enjoining it from maintaining the premises adjoining the hotel as a nuisance, which consisted in keeping and storing fish there. The complaint alleged that respondent maintained the nuisance from May 1,1897, to the commencemеnt of the trial, and damages were demanded in the sum of $5,000. The allegation of the complaint was put in issue by the answer, and the cause was tried, resulting in judgment for appellant, abating the nuisance, and perpetually enjоining and restraining respondent from continuing it; and judgment was also ordered for the sum of $26.91, costs and disbursements, but appellant was not awarded any damages, for the reason that there was not a sufficient pleading of that claim upon which to predicate them. After entry of judgment in that action, the present one was begun for the purpose of recovering $5,000 damages alleged to have been caused appellant on acсount of the existence of the nuisance for the period of eighteen months prior to the time of its actual abatement, in accordance with the judgment. For answer to this complaint, respondent pleaded the judgment at bar; and the trial court ordered judgment for respondent upon the pleadings, and from that judgment appeal was taken to this court by plaintiff.
It appears from the complaint in this suit that the prior’ action
Appellant bases his argument in support of an independent cause of action for' recovery of damages upon the following grounds: First, that it did not appear by the pleadings in the prior action that the amount or character of appellant’s damages were then before the court, or that they were or could have been litigated therein, but, on the contrary, that it expressly appears from the record that such damages were entirely excluded; second, that it is not apparent from the pleadings that all of the damages claimed in this case were suffered before April 7, 1900, the time of the сommencement of the prior action, and that any damages occasioned thereafter were in no event included in that suit. Appellant seeks to maintain his position by reference to the history and nature of the relief granted in such actions, and argues that, inasmuch as the common law gave to the injured party two methods of relief, — one, in law, for damages, and the other, in equity, for the abatement of the nuisance, — it therefоre follows that the injured party is at liberty to follow either one of these courses, without regard to the other. His theory is that, because the aggrieved party may maintain successive actions for damages for the maintenance of a continuing nuisance, it follows that he may maintain one action for the abatement of a nuisance, and another and independent one for damages growing out of the same facts for the sаme period of time.
It has become well established by this court that the mere fact that relief might be partly legal and partly equitable is not decisive of the question of whеther or not there is one or two causes of action. In the case of First Div. St. Paul & Pac. R. Co. v. Rice,
The trial court applied the reasoning in that case to the one now before us, as follows: “An action for abatement and injunction necessarily includes damages, substantial or nominal, and, if the pleader is entitled to the former, it is for him to frame his complaint accordingly. Failing in this, he waives them, for to permit him to afterwards maintain a separate suit thеrefor is to permit the splitting up of a cause of action. * * * It
We think the reasoning of that case is decisive of this action, and that the facts set forth in the complaint in the prior action constitute one causе of action, though it embraced two elements: First, the discontinuance of the nuisance; and, second, the damages incident thereto. But it is immaterial whether the plaintiff successfully pleaded damages in that action оr not, nor would it make any difference if he had not attempted to recover damages. If the recovery of damages was waived, either purposely or by inadvertence, the result must be the same.
It has been suggested that the present action will lie because an independent action for the recovery of damages may be maintained without regard to the abatement of the nuisance. It is well settled that, where the injury is only of a. temporary character, damages are recoverable only up to the date of the institution of the action, and that successive subsequent actions may be maintained for subsequent damages. Brakken v. Minneаpolis & St. L. Ry. Co.,
Appellant’s next point is that damages in the prior case were limited to the time of its commencement, and that such damages as may have accrued subsequent to that date may be recovered in an independent action. As already stated, where a nuisance is continuing in its nature successive subsequent actions for damages may be maintained in each case upon the particular facts alleged in the complaint, and in such causes the damages are neсessarily limited to the time set forth in the pleadings. What
In an action brought to enjoin the existence and continuance-of a nuisance, the pertinent thing is to get rid of the cause of the injury, and such damages as may exist are merely incident thereto, and are not only recoverable up to the time оf the commencement of the action, but down to the time of trial, and. a judgment entered in pursuance thereof is conclusive and final. ■ True, it appears that in this case a period of sixteen days elapsed bеtween the date of the entry of judgment, December 15, and December 31, 1900, when respondent moved out of the premises in pursuance of the judgment; and had it appeared that respondent occupied the prеmises during those sixteen days with an intention and expectation of creating and continuing the nuisance, without regard to the action and judgment entered, that would have constituted a new and distinct offense, and a new and indeрendent cause of action would arise. But as we understand the complaint in the prior action, — and it appears to be conceded, — such occupancy was no more than was necessary to abide by the judgment of the court, and with no intention of continuing the nuisance.
Judgment affirmed.