129 Iowa 465 | Iowa | 1906
The plaintiff is and for many years has been the owner of a quarter section of land in Calhoun county, Iowa. The land is somewhat low and in its natural condition there is a shallow pond or slough of some ten or fifteen acres in extent near the western boundary. The natural slope and drainage of most of the quarter section and of some of the adjacent lands is in the direction of this pond, the outlet of which was to the west across the highway bounding the tract on that side. In the year 1902 the defendant company, by condemnation or by purchase, secured , a right of way and constructed its railroad across the farm and through the pond near its outlet substantially as shown upon the accompanying diagram.
At the close of the testimony on part of plaintiff, the defendant presented a motion for a directed verdict- in its favor on the grounds (1) that no proper proof of damages had been offered by the plaintiff, and (2) that plaintiff by herself or by her agent had contributed to the injury for which she was asking damages. The motion was sustained, and it is from the judgment entered upon the directed verdict that plaintiff appeals.
The record shows that the court below, throughout the course of the trial, consistently ruled that the measure of the plaintiff’s damages, if any, was the difference between the value of her land with a good and sufficient culvert- through the railroad embankment and the value of the same land
I. Beginning with the last proposition above referred to, let us inquire whether there was such a showing of contributory negligence or fault on the plaintiff’s part as to justify the court in holding as a matter of law that she was not entitled to recover.
In leaving this branch of the case it is well to suggest that we have discussed the matter of plaintiff’s alleged contribution to the injury to her land upon the theory adopted by counsel in argument; but we do not wish to be understood as conceding that the doctrine of contributory negligence has any proper application to actions like the one now before us. See Randolf v. Bloomfield, 77 Iowa, 50; Correll v. Cedar Rapids, 110 Iowa, 336.
The principle upon which a party creating a continuing nuisance is held liable to successive actions for damages is that he has a legal right and is under legal obligation to remove, change, or repair the structure or thing complained of, and thereby terminate the injury to his neighbor; and, failing so to do, each day’s continuance of the nuisance is a repetition of the original wrong, and a new action will lie therefor. Railroad v. Mihlman, 17 Kan. 231; New Salem v. Mill Co., 138 Mass. 8; Colrick v. Swinburne, 105 N. Y. 503, (12 N. E. Rep. 427). If the structure or thing complained of is of a lasting character, though perhaps not strictly permanent according to the ordinary definition of the term, it has also been held that the person injured may elect to treat it as permanent and recover original damages, and a judgment obtained in an action tried upon that theory will operate as a bar to any further claim for damages on account of the continuance of the nuisance. Aldworth v. Lynn, 153 Mass. 53, (26 N. E. Rep. 229, 10 L. R. A. 210, 25 Am. St. Rep. 608); Ridely v. Railroad, 116 N. C. 923, 20 S. E. Rep. 962, 32 L. R. A. 708; White v. Railroad Co., 113 N. C. 610, (18 S. E. Rep. 330, 22 L. R. A. 627, 37 Am. St. Rep. 639); Fowle v. New Haven & Northampton Co., 112 Mass. 334, (17 Am. Rep. 106). And see Hollenbeck v. Marion, 116 Iowa, 69; Noe v. Railroad, 76 Iowa, 362; Hodge v. Shaw, 85 Iowa, 137. The confusion which is found in the precedents has arisen not so much from the statement of governing principles as from the inherent difficulty in clearly distinguishing injuries which are original and perma
In Powers v. Council Bluffs, 45 Iowa, 652, this court cited with approval the definition of permanent injury given in Troy v. Railroad Co., 3 Fost. (N. H.) 83, (55 Am. Dec. 177) : “ Whenever 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 except human labor, there the damage is an original damage, and may be at once fully compensated.” This definition we still think correct, but a failure to carefully construe and apply it has led to some apparent inconsistencies in this and some other courts. It will be observed from a reading of the quoted paragraph that the term “ permanent,” so often made use of in connection with the right to recover original damages, has reference not alone to the character of the structure or the thing which produces the alleged injury, but also to the character of the injury produced by it. In other words, the structure or thing producing the injury may be as permanent and enduring as the hand of man can make it, yet if the resulting injury be temporary or intermittent, depending on future conditions which may or may not arise, the damages are continuing, and successive actions will lie for successive injuries. This thought, which is clearly implied in the quoted definition, is further elaborated in the same case (Troy v. Railroad Co., supra) as follows: “ But where the continuance of such act is not necessarily injurious, and where it is necessarily of a permanent character, but may or may not be injurious, or may or may not be continued, then the. injury to be compensated in a suit is only, the damage that has happened.” .Stating the same rule in somewhat different form, it has also been said that “ when such structure is permanent in its character and its structure and maintenance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened, and there can be as
In a note to the same case in 20 Am. St. Rep. 176, Mr. Freeman gives it as the consensus of the authorities that “ when the original act creating a nuisance to land is permanent in its nature, and is at once productive of all the damage which can ever result from it, and at once destroys the estate for all practical purposes, so that when the act is completed all the damage that can be effected thereby is consummated, the entire damages must be recovered in one action, and the statute of limitations begins to run against the cause of action from the time of the complete erection of the nuisance.” In support of this proposition the annotator cites several of our own cases. Possibly as good an illustration of the distinction as can be suggested is in the case of the construction of a milldam across the course of a stream. So far as the dam operates to permanently overflow the land of another and take away from the owner all beneficial use of his property, the damage may be treated as original and all recovered in one action but so far as it may cause only a periodical or occasional flooding the damage is continuing and successive recoveries can be had. Bizer v. Ottumwa H. P. Co., 70 Iowa, 145; Close v. Saum, 27 Iowa, 503; Gibson v. Fischer, 68 Iowa, 29; Watson v. Van Meter, 43 Iowa, 76. Not keeping in mind this distinction between the permanent character of the cause and the resultant injury, the court has been led in a few instances to appear to make the former the sole test whether the damages in question were original; but we think this has never been done where the question here .presented has' been raised and considered. More frequently than otherwise, in cases of this class, the court has simply decided the question before it on the theory upon which it has been presented by counsel, without attempting to determine i(¡3 correctness as an abstract principle.
As applied to obstructions of water and drainage ways
injuries, if any, to the adjacent land, were consequential, only arising from the negligence of the defendant in constructing it. Such being the case, it would seem an elementary proposition that to recover damages the plaintiff must show that he has in fact suffered injury therefrom, and not simply that an injury is threatened. Possibly the threatened injury might be sufficient ground to sustain a suit in equity for an injunction (Moore v. Railroad Co., 75 Iowa, 263), but we find no precedent for holding it a sufficient basis for an action at law for the recovery of damages. This rule has been directly and indirectly affirmed by us on repeated occasions. Miller v. Railroad Co., 63 Iowa, 680; Sullens v. Railroad Co., 74 Iowa, 659; Powers v. Council Bluffs, 45 Iowa, 652; Hunt v. Railroad Co., 86 Iowa, 22; Drake v. Railroad Co., 63 Iowa, 309; Van Orsdol v. Railroad Co., 56 Iowa, 470; Pettit v. Grand Junction, 119 Iowa, 352.
The Powers case, above cited, has been much criticised as announcing the doctrine that the right of action to the landowner dates from the negligent act which results in injury to his property, and as making an improper application of the rule of permanent damages. It has also been repeatedly distinguished by us in later cases, and we have declined to extend the application of the doctrine there announced. Pettit v. Grand Junction, 119 Iowa, 352; Costello v. Pomeroy, 120 Iowa, 213; Drake v. Railroad Co., 63 Iowa, 309. The first criticism above mentioned is based
In Sullens v. Railroad Co., 74 Iowa, 666, upon a similar claim on account of successive floods, an instruction to tbe jury that tbe “ measure of damages for each year is tbe difference between tbe fair market value of the land immediately before tbe injury each year and its fair market value immediately after such injury ” was approved. The rule was again approved in McMahon v. Dubuque, 107 Iowa, 62, and in Peden v. Railroad Co., 78 Iowa, 134. It appears, therefore, that the rule as to the measure of damages ap
Hpon the trial in the court below the plaintiff offered testimony as to the depreciation in the value of her land, but in most cases fixed the date for the comparison as that of the completion of the railway embankment, instead of the date -of the flooding of the land. In one instance, however, the witness, one J. Buffnam, had his testimony directed to the date of the flood, and, while the examination was somewhat indefinite, it was sufficient, we think, to take the question to the jury. The testimony as to the value of the land at the time of the construction of the embankment, which was within a year or less before the alleged injury, was perhaps objectionable if the case was being tried as one for continuing damages; but no specific objection was made thereto as being too remote. Plaintiff was presenting her case evidently upon the theory that her damages were orig
So far as the question of practice in this branch of the .case is concerned, the order of the trial court directing a verdict for the defendant is also erroneous, within the spirit of the decision in Carl v. Coal Co., 69 Iowa, 519. In that case the plaintiff showed himself entitled to nominal damages only, but the jury returned a verdict in his favor for substantial 'damages. The trial court having entered judgment for defendant notwithstanding the verdict, we held it to be erroneous, saying: “ The plaintiff was clearly .entitled to judgment in his favor, unless the verdict was set aside for some sufficient reason. This has not been done, and when such, a motion is made and comes on for hearing it would be competent to give plaintiff the option of taking a judgment for a nominal amount.”
For the reasons stated, a new trial must be ordered, and the judgment appealed from is therefore reversed.