191 Iowa 35 | Iowa | 1920
As we understand it, it is the claim of the appellee that the two suits are not identical, because the first suit, unlike the second one, claimed no damages because of improper construction of the defendant’s track; that no crops planted or growing were involved in the first suit; and that suit was directed to the value of the land before and after the overflow involved in the first suit, but not to the value of the land as affected by the track
“While the diminution of tbe value of the farm was the measure of damages in the former case, still it is confined to diminution caused by one particular diversion of water from Harris Grove Creek and Harmony Creek, and not to diminution by reason of the construction of the track in the manner it was constructed. ’ ’
To begin with, we think the premise is faulty. We hold that the improper construction of the track was urged in the first suit. In that suit, the petition ^declared that the track of the defendant passes through a part of plaintiff’s land, diagonally from northeast to southwest. There is no claim in either petition that what is, in strictness, the track, — that is to say, the rails and the ties, — were improperly laid; and the word ‘ ‘ track, ’ ’ as used in both suits, refers to the bed or grade upon which the ties and the rails were placed. Keep this in mind, and it becomes significant that both petitions alleged that the' grade of the track runs a considerable distance both north and south of plainljff’s land, and is a solid grade; that it is considerably higher than the adjacent lands, and is without opening, with the exception of one opening at about the center of plaintiff’s land, where the railroad crosses the same, at which point there is an opening in the track, made for the sole purpose of caring for the surface water running from the land of plaintiff and from other land to the east. We find the petition in the first suit charges that, in constructing its ‘ ‘ track, ’ ’ defendant negligently failed to provide a sufficient opening at the place where it crosses to admit the water of Harmony Creek to pass over the right of way and under the track, and that defendant negligently failed and neglected to provide sufficient opening in its track at the place where it crosses Harris Grove Greek to care for the water of that creek.
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If the damage caused was, in fact, a permanent and original damage, then, suing therefor and recovering bars futur^ suit for later injury, even if such future injury was neither ascertained or anticipated when the first suit was brought. That is elementary. If one sues for all due or to become due before he knows all that may become due, he none the less must take his recovery as full pay for all damage, present, past, and future.
In Peden v. Chicago, R. I. & P. R. Co., 73 Iowa 328, there was a covenant running with the land that the water on the southeast side of the lot was to be made to run on the same side of the lot, instead of through cattle guards. The defendant railroad constructed a culvert through an embankment, and cast the water on the land of plaintiff on the other side of the lot. ¥e held, in an action for damages for flooding land and to crops, that, if the jury found the culvert was a permanent structure, the damages were original, and that the right of recovery arose at once for all the damages which might occur to the premises by reason of the structure. The distinguishing point in Fowle v. New Haven & N. Co., 112 Mass. 334, seems to be that a case such as the one at bar here is not to be treated strictly as is an action for an abatable nuisance. It is said that:
*39 “More accurately, it is an action against tbe defendant for a. construction of a public work under its charter in such a manner as to cause unnecessary damage by want of reasonable care and skill in its construction.”
It is further said that:
“For such an injury, the remedy is at common law. And if it results from a cause which is either permanent in its character, or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury.”
It is held that it is this that takes the case out of the rule in nuisance cases where continuance is held to be not merely a new damage, but a new injury. The following definition, taken by Powers v. City of Council Bluffs, 45 Iowa 652, from Town of Troy v. Cheshire R. Co., 23 N. H. 83, was approved in Harvey v. Mason City & F. D. R. Co., 129 Iowa 465:
“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. ’ ’
And it is said in City of Ottumwa v. Nicholson, 161 Iowa 473, that, if the injury and the wrong are contemporaneous, and the wrongful condition produced is permanent, and the injury and the damage are permanent unless the condition is changed by the hand of man, then the damages are original, and the cause of action arises at once, and the party may recover his damages thus resulting from the permanent condition created and the permanent wrong incident thereto, in one action.
In Stodghill v. Chicago, R. & Q. R. Co., 53 Iowa 341, there is approved the following statement in Town of Troy v. Cheshire R. Co., 23 N. H. 83:
‘ ‘ The railroad is, in its nature, design, and use, a permanent structure, which cannot be assumed to be liable to change; the appropriation of the roadway and materials to the use of the railroad is, therefore, a permanent diversion of that property to that new use, and a permanent dispossession of the town of it as the place on which to maintain a highway. The injury done to the town is, then, a permanent injury, at once done by*40 the construction of the railroad, which is dependent upon no contingency of which the law can take notice, and for the injury thus done to them they are entitled to recover at once their reasonable damages. ’ ’
It was further said:
“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 raised 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 afterwards could be, and without calculating any future contingencies.”
In Finley v. Hershey, 41 Iowa 389, permanent and original damages were said to follow of necessity the filling up of a slough or arm of the Mississippi River, upon which a slaughterhouse owned by the plaintiffs was situated. The same has been said where a permanent building cut off access to a right of way. And suit to enjoin the erection and for damages was held to bar a successive action attempted for subsequent acts also interfering with said access. Hodge v. Shaw, 85 Iowa 137. In the Harvey case, 129 Iowa 465, 475, this was said to be a good illustration of damages that were original, and all to be recovered in one action:
“The construction of a milldam against 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 * *
In Stodghill v. Chicago, B. & Q. R. Co., 53 Iowa 341, 343, the court said, as to what is a case of original and permanent damage:
“When the earth was deposited in the channel of the creek, and raised to a sufficient height to cover over the bridge and make a solid embankment upon which to lay the railroad track, the water in the creek was at once turned into the new channel. ’ ’
In Fowle v. New Haven & N. Co., 112 Mass. 334, 337, successive suits were not permitted, where the injury was caused by the erection of a permanent embankment along the margin of a river, and, as a result, the current' of that stream was, at' times, thrown upon the land of the plaintiff. We said, in Harvey v. Mason City & F. D. R. Co., 129 Iowa 465, that it
Ordinarily, we take no note of dissenting opinions, nor of cases where a substitute opinion is written after granting a rehearing. But the litigation between these parties seems to demand an exception to this rule. In an opinion (Thompson v. Illinois Cent. R. Co.) reported in 153 N. W. 174, there was a reversal because the trial court had adopted for the measure of damages the difference in value by the acre of the entire Thompson farm before and after the flood. This opinion was concurred in by Justices Gaynor, Preston, and Salinger. A dissent was filed by Mr. Justice Deemer, in which Justices Weaver and Ladd concurred. The dissent took the position that, since the flood deposited mud and- silt on part of the land, this affected the value of the farm in its entirety, and that, if Harvey's case, 129 Iowa 465, was followed (and that it should be), the damage aforesaid was permanent damage to the land, an'd therefore the measure of damage rule adopted by the trial court was right. For one thing, the dissent pointed out that the rule adopted by the trial court is the correct one, where the damages are permanent, as distinguishing from temporary injury, which is easily remedied. This statement in the dissent is not challenged in the majority opinion, and is generally supported in authority. It seems to be settled that only in cases of original and permanent injury to land is the measure of damages the difference in market value in the entire tract immediately before and after the injury; that this rule applies to an injury to the freehold, as distinguished from an interference with the comfortable use and enjoyment of the property. City of Ottumwa v. Nicholson, 161 Iowa 473; Drake v. Chicago, R. I. & P. R. Co., 63 Iowa 302; Sullens v. Chicago, R. I. & P. R. Co., 74 Iowa 659; Harvey v. Mason City & F. D. R. Co., 129 Iowa 465; Thompson v. Illinois Cent. R. Co., 177 Iowa 328; Cumberland & O. C. Corp.
“Manifestly, the injury, at least in part, was to the soil, and the measure of damages was the difference in its market value before and after the overflow.”
• This time it is held this rule is applicable without limiting to the particular part of the farm that was overflowed, and that the value of the entire farm is to be considered, where, from its location and levels, the part flooded could not be separated from the remainder of the farm. This, then, would seem to hold, not only that the measure is the right one because it is the one applied to permanent damage, but also that, in this case (the one urged as an estoppel), permanent damage is claimed and is recoverable. It would settle that it was the theory of the plaintiff (in the first suit) that his was a case of original and permanent injury. But all this is not without conflict.
Were it not for the Thompson decision just commented upon, there could be strong claim that,' to say the least, it is doubtful whether, at the time the alleged diversion was caused, or when the first suit was tried, the injuries suffered were, in fact, original and permanent. Upon that question, there is at least a substantial conflict.
It does not follow that because a structure, say a sewer, is permanent in the sense that it will remain until human hands remove it, that all injury caused by such sewer is contemporaneous with the laying of the sewer, and is original and permanent damage. For what human hands build, they can change, improve, or remove. And as it is the duty of one who creates a nuisance to abate it, and as the nuisance may not at once cause actionable injury, it may well happen that the construction of something which should not be built, or not built as it was, may never be injurious, because changed before there is injury, or happen that injury which does occur is not permanent injury to land. City of Ottumwa v. Nicholson, 161 Iowa 473. And if one can cure and does not, every day’s continuance of a nuisance is a repetition of the original wrong, and a new action will lie
“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.”
That the thing constructed is permanent does not necessarily mean that the injury that may result is permanent. Hughes v. Chicago, B. & Q. R. Co., 141 Iowa 273, 277.
In the Harvey case, 129 Iowa 465, 474, we approve the following from St. Louis, 1. M. & S. R. Co. v. Biggs, 52 Ark. 240 (12 S. W. 331):
“When such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be, the injury to be compensated in a suit is only the damage which has happened, and there may be as many successive recoveries as there are successive injuries.”
It is held, in City of Ottumwa v. Nicholson, 161 Iowa 473,
III. But it is not decisive that the damages claimed in the first suit were not in fact original and permanent damages. If the trial theory in the first suit was that recovery of damages of that character was the object of the suit, then there is an estoppel to say later that such was not the theory and the object. That would estop under the rule that prohibits inconsistent conduct in court, even if the first had not given plaintiff judgment which has been satisfied by payment. But there is no conflict in authority that a theory which obtains judgment and satisfaction may be asserted against relitigation of what was involved in a former suit on the theory of him who prevailed in that suit. This assertion need not be left to abstract reasoning, and is not a matter of first impression. If it can fairly be said that, in the first suit, Thompson proceeded on the theory that he was entitled to and was asking a difference in market value of his entire farm, the verdict and judgment estop him to sue again for injuries to the same land by the same wrong. The first suit will estop the prosecution of the second, although between the two suits additional damage has been done by the wrong complained of in the first suit. Fowle’s case, 112 Mass. 334. It is said therein that the record in the first action shows that plaintiff was not limited to damages which had actually accrued before the date of the writ; that the smallest part included in the judgment was for such damages. In City of Ottumwa v. Nicholson, 161 Iowa 473, it is emphasized that the parties elected to treat the injury complained of as a permanent injury to the land itself, and that the evidence introduced was on that theory, as were the instructions offered and those given. As will presently be seen, that is the state of the record here. In Noe v. Chicago, B. & Q. R. Co., 76 Iowa 360, the evidence was addressed to the theory of permanent damages to the land itself, and that fact is specially noted. It is ruled in the Fowle case, supra, that,
“Although, if the claim for damages be made, and the action is tried on the theory that the damages are original, the parties will be bound thereby.”
It is said in Harvey’s case, 129 Iowa 465:
‘ ‘ It has also been held that the person injured may elect to treat the injury 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.”
In Thayer v. Brooks, 17 Ohio 489, 493, the question is said to depend upon the theory developed by the pleading of the plaintiff. We said, in Risher v. Acken Coal Co., 147 Iowa 459, 461:
“Of course, where the injury is treated as permanent, and damages are asked once for all, no suit could afterwards be maintained for a continuing injury.”
And, as said in City of Ottumwa v. Nicholson, 161 Iowa 473,
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We have already stated that the record shows such election. To amplify: • On the first trial, testimony was received, against the objection of the railroad, as to the reasonable market value “of your farm” just prior to the rains of May 13, 1913; and answer was given by the acre. And like answer as to what was the reasonable market value of “the farm” immediately after it was inundated by that storm. Latta gave evidence on the market value of the Thompson farm, “the 138 acres,” just prior to the flood. Objection being made, the court inquired:
“What do you think the measure of damage is?
“Mr. Roadifer: My thought is that, in a case like this, where the farm is composed of small tracts and this hill land and farm land, the true measure of damages would be to the farm, because the farm would be more valuable separating it than not separating it. My real thought is, the true measure is as to the farm. ’ ’
And then the witness Latta gave the value per acre after the flood. The witness Mills was asked this:
“Taking into consideration that there is about 70 acres of upland and 68 acres of bottom land in that farm, if the upland was separated from the bottom land, would either of the tracts be .as valuable as they are together as one part?”
Over objection, the witness said:
“I think it would go better together. Q. Taking into consideration your actual knowledge of the lay of this land and the farm itself and the general price, reasonable market price of that land in that vicinity, what, in your judgment, was the reasonable market value of the Thompson 138 acres just prior to the storm? A. $150 an aere. Q. What, in your judgment, was the reasonable market value of that land just after it had been flooded and -inundated, or the bottom land between the foothills and the Latta ditch, being about 56 acres ? A. Well, I think it would make $10 an acre difference in the selling price of the farm. (Ans. stricken.) Q. The question called for the market*48 value. A. I would say $140 an acre. The question of the likelihood of overflow affects the value of this land. ’ ’
There was like testimony as to impairment by the acre of the value of the 56 acres that were flooded. The dissent to which we have referred sets forth more testimony that indicated a purpose to obtain original and permanent damages. There was express claim for $1,500 for damage caused “by the depreciation of the value of said real estate. ’ ’ The instructions charged that, if the waterways were insufficient, and thus there was an obstruction which caused the waters in the creeks, or either of them, to back up and overflow, damages should be given “as damages for alleged injury to his land, the difference as shown by the evidence between the reasonable market value of his farm just before the flood in question and immediately after said flood.” That is the measure that is correct only in cases of original and permanent injury to land.
We see no escape from the conclusion that the plaintiff elected to treat the first suit as a vehicle for recovery for permanent injury to his land, and sought to obtain payment on the basis that the value had been impaired for all time to come. True, plaintiff limited his second suit to a claim for loss by injury of a corn crop. But how can that change the election made in the first suit that recovery therein should be compensation for all injury to the land, past, present, and future ? Injury to a growing corn crop is an injury to the land. It cannot be recovered for, because, in the first suit, plaintiff was paid a sum which equaled a very substantial reduction of the value of his farm for all time to come. Taking off, say, $10 to an acre was a taking off forever. It was sought as payment for whatsoever the identical wrong complained of in both suits would ever do to the land. It was the theory of plaintiff that he should be treated as having cheaper land, because the permanent and wrongful construction would injure his land at future times as it had in the past.
Many errors are complained of. Their consideration is obviously unnecessary, because of the decision we - reach. The judgment appealed from must be — -Reversed.