Thompson v. Illinois Centtral R. Co.

• Decision Date: 02 October 1920
• Docket Number: 31971
• Citation: 179 N.W. 191,191 Iowa 35
• Parties: W. R. THOMPSON, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

179 N.W. 191

191 Iowa 35

W. R. THOMPSON, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant

No. 31971

Supreme Court of Iowa, Des Moines

October 2, 1920

REHEARING DENIED MARCH 11, 1921.

Appeal from Harrison District Court.--A. B. THORNELL, Judge.

PLAINTIFF has verdict and judgment for alleged damage to his crops and alleged depreciation of the value of his land caused by overflow waters, charged to be due to negligent conduct on part of defendant. Defendant appeals.

Reversed.

Helsell & Helsell, Cochran & Wolfe, and Tinley, Mitchell, Pryor & Ross, for appellant.

Roadifer & Roadifer and H. L. Robertson, for appellee.

SALINGER J. WEAVER, C. J., EVANS and PRESTON, JJ., concur.

OPINION

SALINGER, J.

I.

In a suit brought and decided before the institution of the suit we now have before us, this plaintiff charged that defendant had injured him by wrongfully causing the same land involved in this suit to be flooded. There are differences in the suits, to which attention will be called later. But they are identical so far as the alleged cause of plaintiff's damage is concerned. In both suits, the plaintiff charges that, by the building of grades and by the manner in which pilings were placed by defendant into running streams, passage of water down those streams was obstructed and interfered with, and that the ultimate consequence was a diversion of water, brought about by the fact that these obstructions caused insufficient waterways, and therefore the water backed up and overflowed some 56 acres of the 138-acre farm belonging to the plaintiff. It is the contention of the appellant that having brought this first suit and having recovered therein stands in the way of the right to maintain the present suit. In apt ways it was urged in the trial court that the bringing of the first suit and obtaining and accepting the recovery therein, works an election of the plaintiff to treat the injury now complained of as an original and permanent injury, and that, therefore, he is now estopped from asserting that he has not received full compensation for all injuries that existed when recovery was had in the first suit, and as well for damages that were then prospective, including injuries now complained of. It complains because this contention was overruled.

As we understand it, it is the claim of the appellee that the two suits are not identical, because the first suit, unlike the second one, claimed no damages because of improper construction of the defendant's track; that no crops planted or growing were involved in the first suit; and that suit was directed to the value of the land before and after the overflow involved in the first suit, but not to the value of the land as affected by the track construction. To put it in the words of the argument for appellee:

"While the diminution of the value of the farm was the measure of damages in the former case, still it is confined to diminution caused by one particular diversion of water from Harris Grove Creek and Harmony Creek, and not to diminution by reason of the construction of the track in the manner it was constructed."

To begin with, we think the premise is faulty. We hold that the improper construction of the track was urged in the first suit. In that suit, the petition declared that the track of the defendant passes through a part of plaintiff's land, diagonally from northeast to southwest. There is no claim in either petition that what is, in strictness, the track,--that is to say, the rails and the ties,--were improperly laid; and the word "track," as used in both suits, refers to the bed or grade upon which the ties and the rails were placed. Keep this in mind, and it becomes significant that both petitions alleged that the grade of the track runs a considerable distance both north and south of plaintiff's land, and is a solid grade; that it is considerably higher than the adjacent lands, and is without opening, with the exception of one opening at about the center of plaintiff's land, where the railroad crosses the same, at which point there is an opening in the track, made for the sole purpose of caring for the surface water running from the land of plaintiff and from other land to the east. We find the petition in the first suit charges that, in constructing its "track," defendant negligently failed to provide a sufficient opening at the place where it crosses to admit the water of Harmony Creek to pass over the right of way and under the track, and that defendant negligently failed and neglected to provide sufficient opening in its track at the place where it crosses Harris Grove Creek to care for the water of that creek.

But we are not prepared to hold that, even if the construction of the track was not mentioned in the first suit, that this alone would prevent that suit from operating either as an adjudication or an estoppel against the litigation of certain questions. If it be the basis of both suits that building a grade as was done, and obstructing the passageway of water down the creek by the manner in which bridge pilings were placed therein, resulted in driving water upon the land of plaintiff, the naked fact that a third means for producing these results was for the first time urged in the second suit will not make the first suit less effective as an estoppel than if all three means that caused the injury had been named in both suits. If both suits rest on a wrongful diversion, produced by two specified agencies, then adding that a third agent co-operated in this result would not create a lack of identity of issue. If, in a first suit, the charge was that plaintiff, at a stated time and place, had knocked out the teeth of the defendant by striking the same with a sledge hammer, and damages were recovered for that assault, it would be settled against a second suit that this assault had been compensated for, even though the second suit charged that plaintiff used a sledge hammer and his fists in knocking out the teeth.

1-a

If the damage caused was, in fact, a permanent and original damage, then suing therefor and recovering bars future suit for later injury, even if such future injury was neither ascertained or anticipated when the first suit was brought. That is elementary. If one sues for all due or to become due before he knows all that may become due, he none the less must take his recovery as full pay for all damage, present, past, and future.

In Peden v. Chicago, R. I. & P. R. Co., 73 Iowa 328, 35 N.W. 424, there was a covenant running with the land that the water on the southeast side of the lot was to be made to run on the same side of the lot, instead of through cattle guards. The defendant railroad constructed a culvert through an embankment, and cast the water on the land of plaintiff on the other side of the lot. We held, in an action for damages for flooding land and to crops, that, if the jury found the culvert was a permanent structure, the damages were original, and that the right of recovery arose at once for all the damages which might occur to the premises by reason of the structure. The distinguishing point in Fowle v. New Haven & N. Co., 112 Mass. 334, seems to be that a case such as the one at bar here is not to be treated strictly as is an action for an abatable nuisance. It is said that:

"More accurately, it is an action against the defendant for a construction of a public work under its charter in such a manner as to cause unnecessary damage by want of reasonable care and skill in its construction."

It is further said that:

"For such an injury, the remedy is at common law. And if it results from a cause which is either permanent in its character, or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury."

It is held that it is this that takes the case out of the rule in nuisance cases where continuance is held to be not merely a new damage, but a new injury. The following definition, taken by Powers v. City of Council Bluffs, 45 Iowa 652, from Town of Troy v. Cheshire R. Co., 23 N.H. 83. was approved in Harvey v. Mason City & F. D. R. Co., 129 Iowa 465, 105 N.W. 958:

"Whenever the nuisance is of such character that its continuance is necessarily an injury, and where it is of a permanent character that will continue without change from any cause except human labor, there the damage is an original damage, and may be at once fully compensated."

And it is said in City of Ottumwa v. Nicholson, 161 Iowa 473, 143 N.W. 439. that, if the injury and the wrong are contemporaneous, and the wrongful condition produced is permanent, and the injury and the damage are permanent unless the condition is changed by the hand of man, then the damages are original, and the cause of action arises at once, and the party may recover his damages thus resulting from the permanent condition created and the permanent wrong incident thereto, in one action.

In Stodghill v. Chicago, B. & Q. R. Co., 53 Iowa 341, 5 N.W. 495, there is approved the following statement in Town of Troy v. Cheshire R. Co., 23 N.H. 83.

"The railroad is, in its nature, design, and use, a permanent structure, which cannot be assumed to be liable to change; the appropriation of the roadway and materials to the use of the railroad is, therefore, a permanent diversion of that property to that new use, and a permanent dispossession of the town of it as the place on which to maintain a highway. The injury done to the town is, then, a permanent injury, at once done by the construction of the railroad, which is dependent upon no contingency of which the law can take notice, and for the injury thus done to them they are entitled to recover at once their reasonable damages."

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