Stodghill v. C., B. & Q. R.
5 N.W. 495
Iowa
1880
Check Treatment
Eothrook, J.

damages-jury f“ooov-’ ery for. I. \ Whеn the earth was deposited in the channel of the creek and raised to a sufficient height to cover over bhe bridge and make a solid embankment up031 which to lay the railroad track, the water in the creek was at once turned into the new сhannel. The principal question in the ease is whether the judgment for damages in favor of Christopher Stodgliill was a. full adjudicatiоn for all injuries to the land, not only up to the commencement of that suit, but for all that might thereafter arise.

In Powers v. Council Bluffs, 15 Iowa, 652, the question being as to what is a permanent nuisance, it was held that where it is of such character that its continuance is necessarily an injury, and that when it is of a permanent character that will continue without change from any cause but human !»bor, the damage is original, and may be at once fully esti®»'i'ed and compensated; that successive actions will not lie, and rbat the statute of limitations commences to run from tiie time of the commencement of the injury to the property. That was a case where the рlaintiff sought to recover damages against the city for diverting the natural channel of a stream, called Indian Creek, by exсavating a ditch in a street in such a manner that it widened and deepened by the action of the water, so as to injure plаintiff’s lot abuttingupon said street. The same rule was recognized in Town of Troy v. Cheshire Railroad Co., 3 Foster (N. H.), 83. In that case the defendant constructed the embankmеnt of its railroad upon a part of a highway. The action was ‍‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​​​​​​‌​‍by the town to recover damages. The plaintiff claimed thаt it was entitled to recover for the damages for the permanent injury. The *344court said: “ The railroad is in its nature, design and use, a рermanent structure, which cannot be assumed to be liable to change; the appropriation of the roadway and materials to the use of thp railroad is, therefore, a j>ermanent diversion of that property to that new use, and a,рermanent dispossession of the town of it as the place on which to maintain a highway. The injury done to the town is, then, a pеrmanent injury, at once done by the construction of the railroad, which is dependent upon no contingency of which the lаw can take notice, and for the injury thus done to them they are entitled to recover at once their reasonablе damages.”

The case at bar is a much stronger illustration of what is a permanent nuisance or trespass ‍‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​​​​​​‌​‍for which damages, past, ¡present, and prospective, may be recovered, than Powers v. Council Bluffs. In this case the damages to the whole extent were at once apparent. The water was diverted from the natural channel as soon as the embankment was raisеd to a sufficient height to -turn the current into the new channel. The injury to the land was then as susceptible of estimation as it ever аfterwards could be, and without calculating any future contingencies. In the other case, when the water commenced to flow in the new channel the plaintiff’s lots were not injured. It required time to wash away the banks and work backward before the injury cоmmenced. It is not necessary to dwell upon this question. The rule established in Powers v. Council Bluffs, supra, is decisive of this case. See, also, Chicago & Alton R. R. Co. v. Maher, Supreme Court of Illinois, Chicago Legal Nows, July 5, 1879. Counsel for appellee contend that the railroad embankment is not permanent because it is liable to be washed out by freshets in the stream, and cannot stand without being repaired. There is no evidence in this record tending to show that the embаnkment is insufficient to accomplish the purpose for which it was erected; that is, to make a solid railroad track and divert the water into the new channel. One witness testified that it is from sixteen to eighteen feet high. We will not presume *345that the defendant was guilty of such a want of engineering skill as not to raise its embankments so that they will not be affected by high water. It seems to us that a railroad embankment, of proper width and raised to the proper height, is about as permanent as anything that human hands can mаke. Before leaving this branch of the case, it is proper to say that the acts complained of were done within thе -limit of the defendant’s right of way, and the injury, ‍‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​​​​​​‌​‍if any, to the plaintiff’s land, was consequential. The defendant did not enter upon plaintiff’s land tо take a right of way for its railroad, and Christopher Stodghill did not bring his action to recover upon that ground. As we have a statute providing for proceedings to condemn the land necessary to be taken for right of way for railroad purposes, it may bе that the mode of ascertaining the damages prescribed by the statute must be pursued. See Daniels v. C. & N. W. R. R. Co., 35 Iowa, 129. That question, however, is not in this cаse, and we only refer to it lest -we may be misunderstood.

2. —: ^ — : cat£aiu<il Christopher Stodghill, in his petition in the former action, averred that the diversiоn of the stream from its natural course across said land perpetually deprived him of the use thereof, to his great damage in the prosecution of liis business, and in the depreciation in the value of his said farm and pasture lands, and he claimed dаmages in the sum of $499. The court instructed the jury in that case that they1- were not to consider the question in regard to any permanent damage to the land, for the reason that the plaintiff had the right to institute other suits to recover damages sustained after the commencement of the action.

But the plaintiff claimed damages generally, and by. his pleadings he and those holding under him must be bound. Indeed, we do not understand counsel for appellee to contend otherwise. ‍‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​​​​​​‌​‍The damages being entire and susceptible of immediate recovery, the plaintiff' could not divide his claim and maintain successive actions. The erroneous instructions oí *346the court to the jury did uot affect the question. It was the duty of the plaintiff to have excepted and appealed. “ An adjudication is final and conclusive, not only as to the matter actually determined, but as to every other mattеr which the parties might have litigated and have had decided, as incident to or essentially connected with the subject-matter of litigation. Freeman on Judgments, Sec. 249. And, see Dewey v. Peck, 33 Iowa, 242. Schmidt v. Zahensdorf, 30 Iowa, 498.

The foregoing considerations dispose of the case, and it becomes unnecessary ‍‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌​​​‌‌‌​‌‌‌​‌​​​​​​‌​‍to examine or determine other questions discussed by counsel.

Reversed.