recovery for such injury would confer license of the defendant to continue it, entire damages may be recovered in a single action; but where the cause of injury is not permanent in character, but such that it may be supposed that the defendant would remove it rather than suffer at once a heavy recovery for entire permanent and lasting damage, which the injury might inflict if permanent, the entire damages including future 98 damages cannot be recovered in a single action, but actions may be maintained repeatedly as long as the cause of injury continues to inflict damages: Watts v. Norfolk etc. R. R. Co., 39 W. Va. 196, 45 Am. St. Rep. 894, 19 S. E. 421; Henry v. Ohio River R. R. Co., 40 W. Va. 235, 21 S. E. 863; Guinn v. Ohio River R. R. Co., 46 W. Va. 151, 76 Am. St. Rep. 806, 33 S. E. 87; Pickens v. Coal River etc. Co., 51 W. Va. 445, 90 Am. St. Rep. 819, 41 S. E. 400; Hargreaves v. Kimberly, 26 W. Va. 787, 27 Am. Rep. 121. It is very plain that injury such as the plaintiff imputes to the defendant in this case is not permanent, inflicting enduring and irremovable damages, but may be recurrent, occasional and in its nature curable by human effort and labor, in the removal of the cause. If the dams were too low in fact or were not repaired, but were leaking, or trash accumulated in the race at the trestle, the injury or damage could be stopped by the use of money and labor. It would not be justice to charge the defendant irretrievably with heavy damage, mulct it at once and for the whole period of the contract with damage before its infliction, as if on the conclusive presumption that the defendant would not, after onerecovery, remove the cause of the injury. There could be no recovery in this case for damage arising after the bringing of the suit. If continued, the plaintiff must resort to other actions. For these reasons plaintiff's instruction 3 allowing the jury in estimating damages to consider the difference in rental value of the mill from March 16, 1899, to June 13, 1904, with the dams in the condition in which they were and have been since March 16, 1899, up to the present time, and the rental value for the same period if a dam had been maintained at proper height, is bad. For the same reason plaintiff's instruction 5, allowing a recovery of permanent damages, is also bad. And so is the instruction 6 bad as to clauses 1 and 4 relating to special findings, because they allow the jury to find a total breach of the contract for the whole period of its duration from a prior failure on the part of the defendant to observe it.

The court gave plaintiff her instruction 7, saying that if the plaintiff had negligently permitted gravel and mud to accumuJate in the mill-race or had been guilty of any other negligence or act whereby the supply of water to her mill had been diminished, such negligence could only be considered in fixing the amount of damages, and would not excuse the defendant from performing its agreement. This seems to be based on sound law. It is claimed gravel and mud were deposited 99 by a drain running into the race in times of heavy rain, and suffered negligently by the plaintiff to remain in the race, and that any failure of full supply of water arose wholly or partly from the impediment to the flow of the water caused by such gravel and mud, and that this wholly exculpates the company from liability. In cases of tort where the plaintiff is chargeable with any contributory negligence it totally forbids recovery; but this does not seem to be the law in cases where a breach of contract is a factor in the production of the injury. In such cases the party contracts to do, or not do, a certain thing, and if he violates his contract and thus causes injury he inust answer in damages. If the plaintiff, by negligence in doing what he ought to do to lessen the damages, adds to them, that negligence goes to mitigate damages. "The acts and negligence of the plaintiff which have enhanced the injury resulting from the defendant's act or neglect may be shown in mitigation of damages. The defendant is liable for the natural and proximate consequences of his violation of contract and of his wrongful acts; but if the plaintiff has rendered these consequences more severe to himself by some voluntary act which it was his duty to refrain from, or if by his neglect to exert himself reasonably to limit the injury and prevent damage, in the case of which the law imposes the duty, and thereby he suffers additional injury from the defendant's act, evidence is admissible in mitigation to ascertain to what extent the damages claimed are to be attributed to such acts or omissions of the plaintiff. If he omit to use his opportunities, and does not reasonably exert himself to lessen the damages which may result from the defendant's act, he is not entitled to compensation for the injury which he might and ought to have prevented, except to the extent of proper compensation for such measures or acts of prevention as the case required and were within his knowledge and power. The measure of his duty in this regard is ordinary care and diligence": 1 Sutherland on Damages, sec. 155. We find in 3 Parsons on Contracts, 189, the

following: "Still it is sometimes difficult to draw the line between what are and what are not the natural consequences of an injury. Always, however, if the consequences of the act complained of have been increased and exaggerated by the act, or the omission to act, of the plaintiff, this addition must be 100 carefully discriminated from those natural consequences of the act of the defendant, for which alone he is responsible. If the plaintiff chooses to make his loss greater than it need have been, he cannot thereby make his claim on the defendant any greater." On page 206 (193) we find this: "But from the elements which make up the actual loss are to be eliminated those causes of loss which spring, not merely from the plaintiff's conduct, but also from his omission to do what he might by reasonable endeavors have done to lessen the loss. . . . . A party suing for breach of contract is required to do what he reasonably can, and improve all reasonable opportunity, to lessen the injury and reduce the damages, caused by the breach": Sherman v. Leonard, 46 Kan. 354, 26 Am. St. Rep. 101, 105, 26 Pac. 717. The same principles will be found in Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 41 Am. St. Rep. 33, 58 N. W. 232, and Sullivan v. McMillen, 37 Fla. 134, 53 Am. St. Rep. 239, 19 South. 340. Are there any cases in which a defendant's breach of contract will be totally excused by reason of the negligence of the plaintiff? There are such cases. the plaintiff's very act or omission is the prime cause of his damage; if it proceeds from the plaintiff's act breaking his contract and causing the injury, the plaintiff could not recover; but if the defendant breaks his contract and injury follows, the plaintiff may recover notwithstanding his act or omission contributes to continue or enhance the damage. In 2 Parsons on Contract. 798 (681), we are told that the application of the law on this subject to the facts is difficult, and it is there laid down that "if the plaintiff's own negligence was an immediate and a principal cause of the injury, without which it probably would not. have occurred, it is certain he cannot recover damages. But, though the plaintiff is proved to have been somewhat negligent, and to have contributed to the injury by his negligence, he may nevertheless recover, if he can show gross or far greater negligence on the part of the defendant, and also that this negligence was the principal and proximate cause of the injury. Language is sometimes used from which it might be inferred that if both parties are negligent, and the defendant more so than the plaintiff, the plaintiff should recover. The rule may be

If

incapable of exact definition. But we think it is not law that if both parties are negligent in a nearly equal degree, but the defendant is, on the whole, the most negligent of the two, 101 the plaintiff shall prevail. To sustain the action, a greater than a merely perceptible difference must exist between the two degrees of negligence." Applying these principles to this case it seems to me that if the defendant did by failure to keep the covenant by some act or omission after the death of Hurxthal, entailing damage to the plaintiff's mill after her purchase, then the defendant would be liable for such actual damage; but that any negligence of the plaintiff in allowing sand, gravel or muud to remain in the race, diminishing the flow of water to the mill can be shown in mitigation of damages. What is attributable to her negligence should be excluded from the damage. Therefore, I think plaintiff's instruction 7 is not objectionable. Defendant's instruction 9 propounds the proposition that the agreement of the 13th of June, 1894, "is based on the assumption that the then existing dam furnished the height of water therein specified and required, and that the same being signed by Ben Hurxthal, the presumption arises that he considered such head of water given by said dams." I do not think this instruction is good, as we cannot say that the execution of the agreement by Hurxthal amounted to the admission put by the instruction. The very object of the agreement moving him to sign it may have been to secure such a dam. Still, we must remember that the adjudication in the chancery suit forecloses the question of height of the dam, and fixes their height according to the contract on the 8th of March, 1898.

Defendant's instruction 10, saying that the decree in the chancery cause shows that the height of the dam was in controversy therein is good under the principles above stated upon that subject.

Defendant's instruction 12 is not good so far as it says that the contract is based on the assumption that the dams existed at its date at the lower end of the log pond then furnished the head of water required by it; but the instruction is good in saying "if the jury believes the said dams then furnished sufficient water, and if the said defendant has maintained said dams to the same height they were on June 13, 1894, and has kept the trash and rubbish from the bridge and trestle across said race, so as not to obstruct the flow of water, and use due diligence in repairing said dams when necessary, they must find 102 for

the defendant," except as to the date, June 13, 1894, the proper date being March 8, 1898.

Defendant's instruction 13 declares the adjudication in the chancery suit extends to the final decree in May, 1899, after the mandate of the supreme court reached the circuit court. I do not think the instruction good. I think that decree, for the purposes of this case, relates to the date of the death of Hurxthal. I shall say nothing upon the subject of excessiveness of damages in view of a new trial, further than to say that they were assessed on an improper basis and made greatly too large, because they cover the whole time from the plaintiff's purchase down to June 13, 1904. As to what damages the plaintiff suffered, if any, we do not say, nor whether the defendant is guilty of a breach of the contract. These matters are left for the new trial. It is very certain that in an action for a breach of contract the measure is more strictly confined than in cases of tort; the primary and immediate result of the breach are alone to be looked to: Wood's Mayne on Damages, p. 14, sec. 12. Punitive damages are confined to torts, and even then damages must be compensatory only as a general rule: Talbott v. West Virginia Cent. etc. R. R. Co., 42 W. Va. 560, 26 S. E. 311; Bodkin v. Arnold, 48 W. Va. 108, 35 S. E. 980. Damages must not go beyond fair compensation for actual loss sustained. They cannot be punitive in action on contracts (3 Parsons on Contracts, 179 (169); 8 Am. & Eng. Ency. of Law, 632); compensation for actual loss is the test, the standard of damages in actions on contract: 1 Sutherland on Damages, secs. 12, 75. Damages for breach of contract in excess of actual compensation are unwarranted and a ground for new trial: Rowland etc. Co. v. Ross, 100 Va. 275, 40 S. E. 922; Dougless v. Ohio River R. R. Co., 51 W. Va. 523, 41 S. E. 911. Neither in tort nor contract do damages go beyond such as are the reasonable and probable consequences of the act complained of, except in some cases of tort: Peters v. Johnson, 50 W. Va. 644, 88 Am. St. Rep. 909, 41 S. E. 190.

Reversed.

The plaintiff cross-complains that the court erred in allowing the record in the chancery suit, including depositions of witnesses, to go in evidence; but, as shown above, it was admissible.

The evidence of John Briscoll, a shareholder in the defendant 103 company, was not admissible as to any conversation or transaction with Hurxthal; but that part of his evidence was