Cumberland & O. Canal Corp. v. Hitchings

• Decision Date: 05 August 1876
• Citation: 65 Me. 140
• Parties: CUMBERLAND AND OXFORD CANAL CORPORATION v. GEORGE F. HITCHINGS.
• Court: Maine Supreme Court

65 Me. 140

CUMBERLAND AND OXFORD CANAL CORPORATION v. GEORGE F. HITCHINGS.

Supreme Judicial Court of Maine.

August 5, 1876

1872.

ON EXCEPTIONS from the superior court.

TRESPASS for filling about two hundred yards of the canal bed immediately below Vaughan's bridge in 1867. The filling was admitted and justified under authority of the city of Portland in the construction of a street. The justice instructed the jury inter alia : " Whatever diminution there is in the value of the property by reason of the trespass is an element of damage." The defendant the verdict being for the plaintiffs, excepted.

J W. Symonds & C. F. Libby, for the defendants.

F O. J. Smith, C. P. Mattocks & E. W. Fox, for the plaintiffs.

WALTON J.

It is now perfectly well settled that one who creates a nuisance upon another's land is under a legal obligation to remove it. And successive actions may be maintained until he is compelled to do so.

In Holmes v. Wilson, 10 Ad. & E., 503, (E. C. L. R., vol. 37,) where the trustees of a turnpike road built buttresses to support it on the land of A., and A. thereupon sued them and their workmen in trespass for such erection; it was held that after notice to the defendants to remove the buttresses, and a refusal to do so, A. might bring another action for trespass against them for keeping and continuing the buttresses on the land, and that the former recovery was no bar.

And in Bowyer v. Cook, 4 C. B., 236, (E. C. L. R., vol. 56,) where the defendant was sued in trespass for placing stumps and stakes on the plaintiff's land, and the defendant paid into court 40 s., which the plaintiff took out in satisfaction of the trespass, and then gave the defendant notice, that, unless he removed the stumps and stakes, another action would be brought against him, it was held, that the leaving of the stumps and stakes on the land was a new trespass, for which another action could be brought and maintained.

And in Russell v. Brown, 63 Me. 203, where the defendant erected a building which extended nine inches on to the plaintiff's land, it was held by this court that a second action of trespass could be maintained for the continuance of the building on the plaintiff's land, notwithstanding the recovery and satisfaction of a judgment for the original erection.

The doctrine of all these cases is, that a recovery of damages for the erection of a building, or other structure, upon another's land, does not operate as a purchase of the right to have it remain there; and that successive actions may be brought for its continuance, until the wrong doer is compelled to remove it.

And, as a necessary result of this doctrine, it has been held,--and we think correctly,--that in the first action brought for such a trespass, the plaintiff can recover such damages only as he had sustained at the time when the suit was commenced. Because, for any damage afterwards sustained, a new action may be maintained; and the law will not allow two recoveries for the same injury.

Thus in Battishill v. Reed, 18 C. B., 696, (E. C. L. R., vol. 86,) where the defendant erected a...