Syllabus by the Court.
Where an action is brought to recover damages for the negligent construction of a railway bridge across the Platte river, whereby it became an unlawful obstruction therein, held, under the liberal rules of construction of the Code, that the petition alleged sufficient to authorize a recovery.
The insertion of the words “or damaged” in section 21, art. 1, of the constitution of 1875, was intended to give a right of recovery which did not previously exist, and was not intended to restrict or limit any remedy previously existing.
Where a railway bridge is so negligently constructed across a river as to form an unlawful obstruction, and become a nuisance by causing an overflow of the river, no right of action accrues to a land-owner until he sustains an actual injury caused by such unlawful obstruction--as by the overflow of his lands.
Where a nuisance is a continuing one, in consequence of which damages are sustained, a recovery is limited to damages which may have accrued before the action is brought, and one action is not a bar to a second action brought for damages thereafter sustained.1
MAXWELL, C. J.
The defendant in error brought an action against the plaintiff to recover damages for the negligent and wrongful construction of its bridge across the Platte river, whereby it is alleged that in March, 1886, a gorge was formed above the bridge, which threw the water of the Platte river out of its channel over the lands of the defendant in error, and thereby caused him a large amount of damage. The railroad company demurred to the petition upon the grounds that the facts stated therein were not sufficient to constitute a cause of action. The demurrer was overruled, and the company declining to answer, a judgment was rendered against it for the sum of $1,000. It now prosecutes a petition in error in this court; the question being, “Does the petition state facts sufficient to constitute a cause of action?”
It is alleged in the petition that “the said defendant now is, and ever since the year 1875 has been, a corporation duly incorporated and organized under and pursuant to the laws of the state of Nebraska; and ever since the year 1877 has been the owner of and engaged in running and operating a railroad leading from Valley Station, in Douglas county, to Lincoln, through the counties of Douglas, Saunders, and Lancaster in the state of Nebraska; that the plaintiff now is, and ever since the year 1882 has been, the owner in fee and in the actual possession of the lands described, as the south-west quarter of section six, in township fifteen north, of range ten east, and the north-east quarter of the south-east quarter and north half of the south-east quarter of the south-east quarter, and lot seven, and the north twenty-six and 40-100 acres of lot nine, of section one, of township fifteen north, of range nine east, comprising two hundred and fifty-nine acres in all, and all lying and being on the bottom land of the Platte river, and bordering on said river on the north bank thereof, in Douglas county, Nebraska. That ever since the year 1882, down to the committing of the wrongs and injuries hereinafter complained of, the plaintiff resided on said lands with his family, and erected and maintained a dwelling-house, barn, stables, store-houses, corrals, feed-yards, field and pasture fencing thereon, and cultivated a large portion of said land as a farm, and on a portion forest trees grew naturally, and on a portion plaintiff maintained a meadow for hay and pasture for cattle, horses, and hogs, and carried on the business of raising, feeding, and fattening cattle and hogs, and kept many horses and large quantities of hay and grain on said lands; that plaintiff's immediate grantor of said lands, one Everett G. Ballou, had for not less than ten years, immediately preceding his sale and conveyance to plaintiff of the same, owned and been in actual possession of and resided on said land, and cultivated, used, and maintained the business thereon, the same as the plaintiff after his ownership and occupation thereof, as aforesaid; that the plaintiff's said lands, ever since the year 1872, and as in its natural state and condition, were and have been lower than the banks of said Platte river, and as well as all the lands roundabout the plaintiff's said land, for many miles, were and have been ever since the year 1872, and as in its natural state, lower than the banks of said river; and plaintiff's said lands, as well as the said lands roundabout, ever since the year 1872, and as in its natural state, were and have been liable to be overflowed by any obstruction of the natural flow of said river; that the defendants, well knowing all of the foregoing facts, and of the said conditions of said lands, and of the occupation, improvements, and business thereon, maintained as aforesaid and against and contrary to notice and warning, did, negligently, unlawfully, and wrongfully, in the month of November, 1876, commence, and by the month of July, 1877, complete and construct and erect, a railroad bridge on its said line of railroad, between the counties of Douglas and Saunders in Nebraska, over and across the said Platte river, for its exclusive use, at a point about one-quarter of a mile above the plaintiff's said lands, in a westerly direction therefrom, the said bridge being so erected and constructed as to create an unlawful obstruction in said river, and to prevent the natural flow of ice and water therein, and to cause the natural flow of ice and water in the spring of the year to gorge, back up, and overflow the banks of said river, and thereby greatly injure and damage adjoining lands and property, and especially the said lands of the plaintiff as aforesaid, and the property thereon and the business thereon maintained as aforesaid; that by reason of the said bridge and as well the approaches thereto, being so negligently, wrongfully, unlawfully, and improperly constructed and erected by said defendant as aforesaid, the said bridge and its approaches, on or about the twenty-seventh day of February, 1886, did so obstruct the natural flow of ice and water in said Platte river as to threaten an ice-gorge and blockade at such point, and thereby cause the ice and water in said river to break over the north bank thereof, and to flow over the adjoining lands, and especially of the plaintiff's said lands to the immediate injury thereof, and to the injury and destruction of the plaintiff's said property and business thereon, all of which facts defendant well knew at the time of such threatened and impending overflow and damage; that, notwithstanding such knowledge, and although notified of the then condition of said river, and of the obstruction and threatened overflow as aforesaid, and warned then of the probable consequences of permitting such obstruction to remain, and then it being practicable for the defendant to have removed said obstruction, and thereby to have prevented the gorge and overflow and damage to plaintiff that followed, with little expense, within not exceeding one day's time, and before any considerable overflow was caused, or any considerable damage was done, with but slight injury to said bridge, yet the defendant neglected and refused to remove said obstruction, or to make a sufficient opening in said bridge to allow the ice and water of said river to flow in the natural channel thereof; that as the direct, natural, and probable result of permitting said bridge and approaches to remain as an obstruction in said river as aforesaid, a large ice-gorge, at said last-mentioned date, commenced to form at said bridge and approaches, and so did form and continue for twenty-four days, of sufficient height and strength to completely turn the entire flow of ice and water running in said river, against, over, and through the said north bank of said river, at and above said bridge, and above the plaintiff's said lands, and to cause the said ice and water of said river to rush and flow with great force, depth, and violence over the plaintiff's said land, and over the surrounding lands, for many miles in extent, and so continue for twenty-four days, and until the pressure of ice and water against said bridge broke through and carried away a portion of the same, when said ice and water immediately receded and flowed down the natural channel of said river; that by reason of said ice and water being forced over and through said north bank as aforesaid, and the ice and water with great force, depth, and violence rushing and flowing over the plaintiff's said lands as aforesaid, and over the surrounding lands as aforesaid, the plaintiff's said lands, and the lands surrounding the same for many miles in extent, were...
