tire cause of action, embracing all ensuing consequences for which compensation is allowed; and however multifarious may be the stipulations in it any act which amounts to a total breach constitutes but a single cause of action;1 unless perhaps where the stipulations are so distinct and relate to subjects so disconnected as to have no relation or unity but such as results from being made at the same time or contained in one instrument. Nor can an entire claim be severed by partial assignments so as to become the foundation of several suits instead of one."

§ 114. Damage to real property. Actions for single and continuing nuisances and acts which are wrongful only when they result in damage may be successively brought; the damages recoverable are ordinarily confined to those which accrued prior to the time each action was begun. In an action for damages occasioned by flooding land a recovery was allowed for killing growing trees though they did not in fact die until after the action was commenced." In an equity suit to obtain damages for acts done and to restrain their continuance, if a temporary injunction is disregarded a supplemental bill will lie to recover damages accruing after the bringing of the original bill. Until recently it has been regarded as established by the English decisions that where injuries to the land of one person result from digging, mining or building upon the property of another, that all the damages, past and prospective, were recoverable in one suit brought upon the original cause of action. Late adjudications have established another rule. In 1861 the house of lords passed upon a question

1 Jacobs v. Davis, 34 Md. 204; Waterbury v. Graham, 4 Sandf. 215; Bancroft v. Winspear, 44 Barb. 209; Spear v. Stacy, 26 Vt. 61.

2 McIntosh v. Lown, 49 Barb. 550. Chicago, etc. R. Co. v. Nichols, 57 Ill. 464; Fourth Nat. Bank v. Noonan, 88 Mo..372; Loomis v. Robinson, 76 id. 488; Chicago & A. R. Co. v. Maher, 91 Ill. 312.

4 Blunt v. McCormick, 3 Denio, 283; Cumberland C. Co. v. Hitchings, 65 Me. 140; Thayer v. Brooks, 17 Ohio, 489; Loweth v. Smith, 12 M. & W.

582; Beach v. Crain, 2 N. Y. 86; Cobb v. Smith, 38 Wis. 21; Hazeltine v. Case, 46 id. 391; Burnett v. Nicholson, 86 N. C. 99; McConnel v. Kibbe, 29 Ill. 482; S. C., 33 id. 175; Holmes v. Wilson, 10 A. & E. 503; Kinnaird v. Standard Oil Co., 89 Ky. 468.

5 Hayden v. Albee, 20 Minn. 159; Clark v. Nevada L. & M. Co., 6 Nev. 202. See Crabtree v. Hagenbaugh, 25 Ill. 214.

6 Waterman v. Buck, 63 Vt. 544. 7 Mayne's Dam. 138.

based upon the following facts: A. B. was the owner of a house; C. D. was the owner of a mine under the house and under the surrounding land; C. D. worked the mine, and in so doing left insufficient support to the house, which was not damaged nor the enjoyment of it prejudiced until sometime after the workings had ceased. The question submitted by the lord chancellor to the lords was: "Can A. B. bring an action at any time within six years after the mischief happened, or must he bring it within six years after the workings rendered the support insufficient?" The opinion was that the action was not barred if brought within six years from the time the mischief was done. In an earlier case2 an excavation had been made and a subsidence had resulted, the injury from which had been satisfied. Subsequently another subsidence from the same excavation caused additional injury. In an action to recover for the latter the defense was that the cause of action in respect to the subsidence had been satisfied. Plaintiff pleaded that he was not suing for that cause of action, but for a new and different cause, the subsequent subsidence. The defendant contended that the pleading was bad because it was only a new assignment of a damage which was the result of the former cause of action; with this contention the court agreed. In another case 3 the trustees of a turnpike road made a covered drain by the side of the highway; it was so made that it collected water in it, and the water was caused to flow into the plaintiff's mines, and could not go elsewhere. It was answered that the action was barred; but it appeared that plaintiff had been injured within the time constituting the limitation. The court said the causa causans of the injury to the property was a continuing cause; but that cause alone gave to the mine-owner no right of action: it was a cause which if thereby any damage was occasioned to the mine-owner's property would immediately give him a cause of action; it had given him a cause of action sometime ago, but since that the trustees continued it; they might have stopped it; the continuing causa causans remained

1 Backhouse v. Bonomi, 9 H. of L. Cas. 503; Bonomi v. Backhouse, Ellis, B. & E. 622, 654.

"Nicklin v. Williams, 10 Exch. (1854), 259.

3 Whitehouse v. Fellows, 10 C. B. (N. S.) (1861), 765.

and remained in the power of the trustees, and that caused a new injury to the mine-owner's property, that was a new right of action because it was an injury to his property in each case. In a case1 later than any of those referred to it was held by a majority of the court, Cockburn, C. J., dissenting, that where land and buildings are injured by the removal of lateral support through mining operations carried on by the defendant on his own land that future damages are recoverable. Up to this point it seems clear that these cases are in conflict; Whitehouse v. Fellowes not being harmonizable with Nicklin v. Williams, and the latter being in antagonism with Backhouse v. Bonomi. This is the view of the court of appeal in a case decided in 1884,2 and in which the conclusion of the dissenting member of the court in Lamb v. Walker was adopted as a correct exposition of the law, and as being in harmony with the decision of the house of lords in Backhouse v. Bonomi. As stated by the master of the rolls in Mitchell v. Darley Main Colliery Co. the views of the chief justice in Lamb v. Walker were that where an excavation had been made, and a subsidence has taken place, it may be true that for all the effects, both existing and prospective, of that subsidence, the person injured ought to sue at once. But what is to be done as to a new subsidence? The mine-owner has excavated in his own property; he knows that he has caused a subsidence to his neighbor's property, and he knows that that neighbor is entitled to damages for it; will he run the risk of allowing that excavation to continue, the effects of which he may obviate by immediately putting in a wall or propping up his own property? There is nothing to prevent him; will he allow that to continue or will he not? If he does nothing, he is not counteracting the effects on his neighbor's property of something which he has done on his own; he is not counteracting that mischief to his neighbor by doing something on his own property; and if there is a new subsidence that will give his neighbor a new cause of action. It is difficult to conceive that the jury which is to give damages. for the first subsidence that is existing ought to give damages for a prospective new subsidence which the defendant has the

1 Lamb v. Walker, 3 Q. B. Div. (1878), 389.

2 Mitchell v. Darley Main Colliery Co., 14 Q. B. Div. 125.

option and the right to prevent; so that, although before the verdict of the first jury is given, or although at the time that that verdict is given the mine-owner is doing that which will prevent any future damage, nevertheless the jury in the first action ought to take into consideration the prospective injury which might be thought likely to occur at the time when the action was brought. Expressing his own views, the master of the rolls continued: "That seems to me a proposition which, when it is well sifted out and examined, cannot stand, and therefore the chief justice's reasoning, of itself, and without reference to Backhouse v. Bonomi, is conclusive to show that each subsidence is a fresh cause of action. Besides that, it seems to me to be in accordance with what was decided in Backhouse v. Bonomi, and to be the logical result of Backhouse v. Bonomi. Therefore, I agree with the lord chief justice's view that each subsidence is a new cause of action, although the causa causans of each subsidence may be the same. It may be argued that the causa causans is not the The causa causans of the first is the excavation, the causa causans of the second is, as a matter of fact, the excavation unremedied, or the combining of the excavation and of its remaining unremedied." A similar rule has been applied where the acts complained of were not continuous, as where temporary flash-boards were erected on a dam from time to time or the gates thereof were opened at intervals; and where the water in a stream has been diverted by placing obstructions therein.2

same.

1

§ 115. Same subject. Where injuries result from a temporary trespass upon land all the damage done must be recovered for in a single action. If there has been a recovery for the injury inflicted upon a special part of a tract a subsequent action cannot be maintained to recover for that done to another portion of it at the same time and by the same act.3

1 Noyes v. Stillman, 24 Conn. 15. 2 Beckwith v. Griswold, 29 Barb. 294. See Williams v. Missouri Furnace Co., 13 Mo. App. 70.

3 Pierro v. St. Paul, etc. Ry. Co., 39 Minn. 451; Child v. Boston & F. I. Works, 19 Fed. Rep. 258; Williams v. Pomeroy Coal Co., 37 Ohio St. 583;

Dick v. Webster, 6 Wis. 481; Marshall v. Ulleswater Steam Nav. Co., L. R. 7 Q. B. 166; Lord Oakley v. Kensington Canal Co., 5 B. & Ald. 138; Clegg v. Dearden, 12 Q. B. 575; Vedder v. Vedder, 1 Denio, 257; Beronio v. Southern P. R. Co., 86 Cal. 415.

In Kansas P. Ry. Co. v. Mihlman,

Where the trespass is continuing or is repeated each repetition or the continuation after suit brought is a fresh wrong and affords ground for a new action. So where plaintiff was seized of an ancient house with lights therein, and defendant