43 Kan. 151 | Kan. | 1890
The opinion of the court was delivered by
The plaintiff had the privilege to consider the dam a temporary injury only, and in both actions he has sued for the special or temporary damages which have occurred as a temporary obstruction or nuisance. In the first action he recovered damages to the date of the trial of the case in 1885. His last
In Railway Co. v. Mihlman, supra, this court ruled that—
“ 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 wrongdoer is, that he has a legal right, and is under a legal duty, to terminate the cause of the injury.”
In Union Trust Co. v. Cuppy, supra, Mr. Justice Valentine, speaking for this court, said:
“The wrong committed by the defendants was in the nature of a nuisance, and a continuing nuisance; and while possibly the plaintiff might at any time have had an action to abate the nuisance, yet he nevertheless had the right to sue at any time after any particular damage was done him, for the amount of such damage. It is possible, also, that the plaintiff might have waived his right at any time to consider the obstruction of the stream as a nuisance, and might have considered it as giving to the defendant a permanent right, a permanent easement upon his land, and then have sued the railroad company for the permanent injury to his land, and recovered for the injury as in a condemnation proceeding; but he was not bound to treat the obstruction as an easement, or to waive his right to treat it as a nuisance.”
As to the right of Hardesty to recover, if the defendant has committed the wrongful acts complained of, see Akin v. Davis,
The law as declared in the original opinion filed is fully affirmed; but on account of the allegations in the petition that an action is pending by Hardesty to abate or lower the dam, a portion of the language in the original opinion is misleading, and therefore must be qualified and corrected. The district court, in its discretion, will have ample power to delay the trial of this case until the injunction proceedings recited in the petition are disposed of.
The judgment heretofore rendered in this case in this court will be vacated, and the judgment of the district court will be reversed, and the cause remanded for further proceedings.