Bowers v. Miss. & R. R. Boom Co.

• Decision Date: 19 December 1899
• Citation: 78 Minn. 398,81 N.W. 208
• Court: Minnesota Supreme Court
• Parties: BOWERS v. MISSISSIPPI & R. R. BOOM CO.

78 Minn. 398

81 N.W. 208

BOWERS

v.MISSISSIPPI & R. R. BOOM CO.

Supreme Court of Minnesota.

Dec. 19, 1899.

Appeal from district court, Anoka county; J. F. McGee, Special Judge.

Action by Charles E. Bowers against the Mississippi & Rum River Boom Company. Verdict directed for defendant. From an order refusing a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

1. The test whether an injury to real estate by the wrongful act of another is permanent, in the sense of permitting a recovery of prospective damages therefor, is not necessarily the character, as to permanency, of the structure or obstruction causing the injury, but the test is whether the whole injury results from the original wrongful act, or from the wrongful continuance of the state of facts produced by such act.

2. The defendant, in the year 1887, placed in the river opposite the plaintiff's farm, but not upon it, certain piling, to facilitate the floating of logs in the stream, and has ever since maintained it there. The effect of the piling was and still is to turn the water, logs, and ice upon plaintiff's land, whereby its shores were and are washed away. In the year 1895 he recovered a judgment for the injuries to his land by reason of the acts of the defendant to that date, which was satisfied. In the year 1899 he brought this action to recover the damages to his land so accruing since the commencement of the former action. Held, that as to the plaintiff such piling is a continuing nuisance, for which successive suits for damages may be brought, and that the former judgment was not a bar to this action. Everett Hammons, for appellant.

John B. Atwater, for respondent.

START, C. J.

This is an action to recover damages which the plaintiff claims to have sustained by the act of the defendant in placing piling in the Mississippi river opposite his farm, whereby the water in the river was turned from its natural course, and carried upon and against his land, washing away the shores thereof. The answer admitted and alleged that in the year 1887 the defendant, in the exercise of its charter powers as a corporation engaged in the business of booming and driving logs, placed the piling in the river for the purpose of keeping floating logs off from the sand bars therein, but that the defendant removed the piling in 1895. It further alleged that on May 4, 1895, the plaintiff duly recovered judgment against the defendant for the same cause of action alleged in the complaint in this action, and that such judgment has been paid and satisfied. The reply denied that the judgment pleaded as a bar was for the same cause of action as that alleged in the complaint herein. The trial court, at the close of the evidence, directed a verdict for the defendant, on the ground that the judgment in the prior action was a bar to this one, and, further, that the evidence was not sufficient to establish a cause of action against the defendant. The plaintiff appealed from an order denying his motion for a new trial. If the former judgment is not a bar, the evidence, although conflicting, was sufficient to sustain a verdict for the plaintiff. The question, then, for our consideration, is whether the trial court erred in holding that the prior judgment was a bar to this action.

There was evidence, as to this question, tending to establish these facts: The defendant, in the year 1887, placed the piling in the river, and has ever since kept it there. The effect of this piling was and still is to turn the water, ice, and logs against plaintiff's land, whereby its shores were and are cut and washed away. The plaintiff, on February 5, 1895, brought an action against the defendant to recover the damages sustained by him by reason of such acts of the defendant, and recovered a judgment therefor in the sum of $400, which is the prior judgment in question. It has been satisfied. In the prior action prospective damages were not claimed nor assessed. It was established in that action, as the jury found, that 4 1/2 acres of the plaintiff's land had been washed away by reason of the defendant's wrongful acts prior to the commencement of this action, and the court instructed the jury that the measure of damages was ‘the difference between the actual value of the land as it was before the washing and as it now is with the washing away.’ Since February 5, 1895, some four acres more of the plaintiff's land have been washed away by reason of such piling being so maintained in the river, and this action is for the recovery of damages therefor.

The plaintiff was bound to recover in his first action all the damages which he was entitled to; and if he was then entitled to recover for all injuries, past, present, and future, to his land, by reason of the acts of the defendant in placing and maintaining the piling in the river, the judgment in the prior action is a bar to this one; for the plaintiff, if such were the case, could not split up his cause of action, and recover a part of his damages in the first action, and then bring this action for the rest of them. The defendant claims that the first action was just such a case, and that the trial court correctly held the judgment to be a bar. The test, whether an...