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32. When damages recoverable in one action only. -It must be evident, however, that in some acts of trespass a right of action may arise long after the trespass is committed and that a Statute of Limitations which might be successfully pleaded to the original act could not be so pleaded to this new element of damages. In other words, the right to sue for this class of trespasses continues so long as damages continue to arise therefrom. Evidently those mentioned in the foregoing cases do not fall within this class. We may say from the decisions in these and like cases, that when the act of the wrongdoer consists in a trespass which results in depriving plaintiff of a portion of his property that has been taken by defendant, or in simply injuring plaintiff's property by doing some wrong by which the injury is entire and complete when the wrong is done, such as digging into his mine, cutting and carrying away his timber, breaking in his doors or windows, injuring his fruit trees, or breaking down his shrubbery, then one action alone is given to plaintiff for such a trespass and that it arises at once when the act of trespass is committed. The injury and the damage, both of which are required to produce a cause of action, concur at this moment of time. And since damage alone without injury, like injury without damage, will not give rise to a cause of action, any new damage thereafter resulting cannot be recovered, after one adjudication of, or settlement for, the original trespass, because plaintiff's entire claim is merged in the former judgment or settlement.

So it was held in Clegg v. Dearden, Lloyd v. Wigney, Kansas Pac. Railway Co. v. Mihlman.87

The first recovery or adjudication is a complete bar to an action for future damages. In the Kansas Pacific Railway case, supra, the court said: "Where the original act is unlawful and an invasion of plaintiff's rights, the cause of action dates from the act, and a new cause does not arise from new damages resulting therefrom." In this case defendant had wrongfully entered upon plaintiff's land and had dug a ditch thereon, which was an injury to the land, and the court held that all the wrong was complete when the ditch was dug, and that there could be no legal duty devolving upon defendant to re-enter plaintiff's land and fill up the ditch.

33. When more than one action.-Cases of this character are to be distinguished from those where the trespass itself does not terminate the wrong, but where the injury continues from day to day or from time to time so long as it remains the duty of the defendant to discontinue the cause of the injury. Such acts readily fall into two classes: one where defendant's original act is not a trespass upon plaintiff's property, being in itself legal, but which results from time to time in injury to plaintiff. As, placing a drain on one's own land in such a manner that water will, from time to time, be cast upon another's land; or using machinery or a building on land of one's own in such a way as to injure plaintiff.

The other class consists of those acts which are

87 Clegg v. Dearden, 12 Q. B. 576; Lloyd v. Wigney, 6 Bing. 489; Kansas Pac. Ry. Co. v. Mihlman, 17 Kans. 224.

wrong in themselves and result in a continuing wrong to another, such as the erection of a building or structure on another's land without his consent. The wrong continues so long as the structure remains, and the damage also being continuous, rights of action are continually arising; and the fact that one judgment has been taken against defendant, is no bar to future actions for future damages. The law imposes upon the defendant the duty to remove from plaintiff's land the obstruction he placed there and so long as this duty remains, responsibility for failure to perform it continues.

This question was before the court in Holmes v. Wilson.88 There it was shown that the defendants, trustees of a turnpike company, had built buttresses on plaintiff's land, and for this, in an action of trespass, he recovered damages, and then gave defendants notice to remove the buttresses, which they failed to do. A second action was begun, to which the former action was pleaded in bar. But it was held that this was not a bar, and that the buttresses constituted a continuing trespass giving rise to repeated causes of action. The plaintiff in such cases finds that his right to exclusive possession of his property is continually invaded by the structure of defendants, and that his rights therein are thus daily limited by a new wrong, which defendants should and may any time in the future terminate. The legal obligation to discontinue a trespass or to remove a nuisance always rests upon the one guilty of these wrongful acts, and no good reason can be found why,

88 10 A. & E. 503, LEADING ILLUSTRATIVE CASES.

if he fail to do so, he should not repeatedly be held for his continued wrong.

34. Same subject-Rule stated. In National Copper Co. v. Minnesota Mining Co.,89 supra, the following rule of distinction between the cases was approved: "Where the plaintiff complains of a trespass, the statute runs from the time the trespass was committed, except in the case of a continuing trespass. But where the cause of action is not in itself a trespass, as an act done upon a man's own land, and the cause of action is the consequential injury to the plaintiff, there the period of limitation runs from the time the damage is done."

90

The theory which would prohibit the bringing of more than one action for such a continuing trespass as the erection of a structure on another's land, would result in granting to the intruder the privilege forever of continuing such structure by means of this action in trespass. In Holmes v. Wilson, supra, Patterson, J., said: "How can you convert a recovery and payment of damages for the trespass into a purchase?" And in response to the argument of counsel that a former judgment for damages operated as a purchase of land, he said: "As to the supposed effect of the judgment in changing the title to land, the consequences of that doctrine would be, that a person who wants his neighbor's land might always buy it against his will, paying only such purchase money as a jury might assess for damages up to the time of action." And this doctrine

89 57 Mich. 83, 58 Am. Rep. 333.

90 10 A. & E. 503, LEADING ILLUSTRATIVE CASES.

the court repudiated, holding that each fresh injury to land, such as a continuing trespass, gives rise to a new cause of action.

35. Same subject-Buildings erected on another's land.-In Esty v. Baker the court held that the continuance of a building on another's land is a trespass for which damages may be recovered, even though damages had already been recovered for the trespass in erecting the building." So in Russell v. Brown, defendant had erected a wall nine inches wide and one hundred and six feet long on the land of plaintiff; and plaintiff recovered damages for its erection there. Later he again sued defendant for its continuance and the court held that the mere continuance of a structure wrongfully erected on the land of another, even after damages had once been paid for the original trespass in building the structure, was a continuing trespass for which damages could again be recovered, and that such judgment for damages does not operate as a purchase of a right to continue the structure.92 The same rule was affirmed in Thompson v. Morris Canal and Banking Co.93

36. Theory of temporary or permanent nuisance. -All the courts do not approve the foregoing doctrines. It is sometimes contended that the line of distinction should be made to depend upon whether the act causing the injury has resulted in some per

91 48 Me. 495.

92 63 Me. 203.

93 17 N. J. L. 480; Thayer v. Brooks, 17 O. 489; Anderson, etc., R. Co. v. Kernodle, 54 Ind. 314; Harrington v. St. P. & Sioux City R. R. Co., 17 Minn. 215; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98.

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