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erected a building whereby the former's lights were estopped, a recovery for the erection did not bar an action for its continuance. In another case there had been an action of trespass for placing stumps and stakes on plaintiff's land, which action had been satisfied; a subsequent action for leaving them there was sustained on the ground that a new trespass was thereby committed. In Holmes v. Wilson trespass was brought against a turnpike company for continuing buttresses on plaintiff's land to support its road. He had recovered compensation in a former action. After refusing to remove the buttresses on request another action of trespass was brought. It was argued for the defendant that the damages given in the first action were to be regarded as full compensation for all injuries and were to be taken as the full estimated value of the land occupied by the buttresses; that the judgment operated as a purchase of the land. In reply Patterson, J., said: "How can you convert a recovery and payment of damages for the trespass into a purchase? A recovery of damages for a nuisance to land will not prevent another action for continuing it. As to the supposed effect of the judgment in changing the property of the land, the consequence of that doctrine would be that a person who wants his neighbor's land might always buy it against his will, paying only such purchasemoney as a jury might assess for damages up to the time of the action. If the property was changed when did it pass? Suppose the plaintiff had brought ejectment for the part occupied by defendant's buttresses, would the recovery of damages in trespass be a defense? There is no case to show that when land is vested in a party and fresh injuries are done upon it fresh actions will not lie." These cases may be distinguishable from the Kansas decision' on the ground that

of trespass to compensate in damages for the loss sustained. The defendant having made an excavation and aperture in the plaintiff's land was liable to an action of trespass; but no cause of action arises from his omitting to re-enter the plaintiff's land and fill up the excavation; such an omission is neither a continuation of a trespass nor of a nui

sance; nor is it the breach of any legal duty." Cumberland C. Co. v. Hitchings, 65 Me. 140.

1 Rosewell v. Prior, 2 Salk. 459. 2 Bowyer v. Cook, 4 M. G. & S. 236. Compare Kansas P. Ry. Co. v. Mihlman, supra.

310 A. & E. 503.

4 Kansas P. Ry. Co. v. Mihlman, in note to last paragraph.

the request to remove the things complained of may be considered as a license to enter for that purpose; but otherwise it is difficult to harmonize them with it. It may be that the true ground of distinction is stated in a Maine case: "When something has been unlawfully placed upon the land of another which can and ought to be removed, then, inasmuch as successive actions may be maintained until the wrong-doer is compelled to remove it, the damages in such suit must be limited to the past and cannot embrace the future."

§ 116. Same subject. The authorities are not agreed as to the right to bring successive actions where the result of a tort to real property is to create a permanent appropriation of it to the public use, as for railroads, streets, sewers and the like; or to change its condition so as to adapt it to the grade of streets. Where property is taken for public use under the statutes which provide therefor prospective damages as well as others are assessed; they are an entirety, and all such as proceed from the appropriation of it to the use for which it is taken are presumed to have been anticipated. If land is damaged by a permanent structure lawfully erected, which, without any further act except to keep it in repair, must continue to cause the result which is complained of, the owner may recover in one action for damages sustained and those which will fall upon him. The judgment in the action first brought will bar another like action for subsequent injuries

1 Cumberland C. Co. v. Hitchings, 65 Me. 140.

2 White v. Chicago, etc. R. Co., 122 Ind. 317; Perley v. B., C. & M. R. Co., 57 N. H. 212; Sawyer v. Keene, 47 id. 173; Aldrich v. Cheshire R. Co., 21 id. 359; Fowle v. New Haven & N. Co., 107 Mass. 352; S. C., 112 id. 334; Van Schoick v. Delaware Canal, 20 N. J. L. 249; Water Co. v. Chambers, 13 N. J. Eq. 199; Waterman v. Connecticut R. Co., 30 Vt. 610; Chesapeake Canal v. Grove, 11 Gill & J. 398; Furniss v. Hudson River R. Co., 5 Sandf. 551; Baltimore R. Co. v. Magruder, 34 Md. 79; Missouri R. Co. v. Haines, 10 Kan. 439; La Fayette R. Co. v. New Albany, 13 Ind. 90; Mont

morency R. Co. v. Stockton, 43 id. 328; Evans v. Haefner, 29 Mo. 141; Baker v. Johnson, 2 Hill, 342; Call v. Middlesex, 2 Gray, 232; Veghte v. Hoagland, 29 N. J. L. 125. But see Lancashire R. Co. v. Evans, 15 Beav. 322.

It is said in North Vernon v. Voegler, 103 Ind. 314, that the construction of works of a public character by municipal officers is clearly analogous to the seizure of land under the right of eminent domain, and that all the damages occasioned thereby must be assessed in one action. But this position is controverted by a case considered in the text of this section.

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from the same cause. A recovery of prospective damages in such a case will bar an action for subsequent damages though caused by an unusual event. In some cases this principle has been extended to the unlawful entry upon land by railroads and the building of tracks thereon, and in others to the rightful improvement of a street, though the work was negligently done, and the negligence was the cause of the action. These decisions are rested on the principle that the parties have elected to consider the trespass as permanent, and they apply the rule applicable in condemnation proceedings which requires a final adjustment of the liability of the party condemning. As will appear there are strong objections and weighty au thorities in opposition. Some of the courts which entertain this view hold that if the gist of the complaint is not the unlawful entry and occupation, but the improper use, that the wrong may be redressed in successive actions."

For damages resulting from the negligent erection or construction of a building or culvert which is erected or constructed pursuant to law, successive actions may be brought." Damage to crops by the annual overflow of water is susceptible of apportionment, and compensation therefor may be recovered in successive actions." In a New York case which

1 Fowle v. New Haven & N. Co., 107 Mass. 352; Troy v. Cheshire R. Co., 3 Fost. (N. H.) 83; Chicago & A. R. Co. v. Maher, 91 Ill. 312; Same v. Schaffer, 26 Ill. App. 280; Same v. Loeb, 118 Ill. 203; Swantz v. Muller, 27 Ill. App. 320; Elizabethtown, etc. R. Co. v. Combs, 10 Bush, 382; Jeffersonville, etc. R. Co. v. Esterle, 13 id. 667; North Vernon v. Voegler, 103 Ind. 314; Central Branch U. P. R. Co. v. Andrews, 26 Kan. 702; Ohio & M. Ry. Co. v. Wachter, 123 Ill. 440; Bizer v. Ottumwa Hydraulic Co., 70 Iowa, 145; Powers v. Council Bluffs, 45 id. 652; Indiana, etc. Ry. Co. v. Eberle, 110 Ind. 542; Lafayette v. Nagle, 113 id. 425; Frankle v. Jackson, 83 Fed. Rep. 371.

3 Frankle v. Jackson, 33 Fed. Rep. 371; Central Branch U. P. R. Co. v. Andrews, 26 Kan. 702; Indiana, etc. Ry. Co. v. Eberle, 110 Ind. 542; Baldwin v. Chicago, etc. Ry. Co., 35 Minn. 354.

4 North Vernon v. Voegler, 103 Ind. 314; Powers v. Council Bluffs, 45 Iowa, 652.

5 Lindquest v. Union P. Ry. Co., 33 Fed. Rep. 372.

6 Ohio & M. Ry. Co. v. Wachter, 123 Ill. 440; Chicago, etc. R. Co. v. Schaffer, 26 Ill. Ap. 280; S. C., 124 Ill. 112.

7 Oldfield v. Wabash, etc. Ry. Co., 22 Mo. App. 607; Van Hoozier v. Hannibal, etc. R. Co., 70 Mo. 145; Dickson v. Chicago, etc. R. Co., 71 id.

2 Fowle v. New Haven & N. Co., 112 575. Mass. 334.

was fully considered' it is held that if a railroad is constructed upon or over a highway in which or in the soil of which individuals have private rights, that unless the public right is obtained and private rights are lawfully acquired the builders thereof are trespassers; and an adjacent owner may recover only the damages he has sustained up to the commencement of the action; for damages thereafter resulting successive actions may be brought. There is no presumption that the trespass will be continued, and title to land cannot be acquired otherwise than by purchase or condemnation proceedings.3 Criticising the rule held by some courts to the effect that where the character of the injury is permanent, and the complaint recognizes the defendant's right to continue in the use of the property, and to acquire as the result of the suit the owner's right thereto, in pursuance of which the damages are assessed on the basis of the permanent depreciation of the property, and with especial reference to a case which holds that damages may be so assessed for negligence in making a lawful improvement in a street,' Earl, J., says that in his opinion that decision is clearly unsound as to the precise question adjudged. "What right was there to assume that the street would be left permanently in a negligent condition, and then hold that the plaintiff could recover damages upon the theory that the carelessness would forever continue?" The municipality "may cease to be careless, or remedy the effects of its carelessness, and it may apply the requisite skill to its embankment, and this it may do after its carelessness and unskilfulness and the consequent damages have been established by a recovery in an action. The moment an action has been commenced, shall the defendant in such a case be precluded from remedying its wrong? Shall it be so precluded after a recovery against it? Does it establish the right to continue

1 Uline v. New York, etc. R. Co., 101 N. Y. 98.

2 This rule is well established in New York. New York Nat. Bank v. Metropolitan E. Ry. Co., 108 N. Y. 660; Pond v. Same, 112 id. 186. See Lahr v. Same, 104 id. 270; Henderson v. New York Central R. Co., 78 N. Y. 423; Schell v. Plumb, 55 id. 592.

3 Carl v. Sheboygan, etc. R. Co., 46 Wis. 625; Blesch v. Chicago, etc. R. Co., 43 id. 183; Russell v. Brown, 63 Me. 203; Cumberland & O. C. Co. v. Hitchings, 65 id. 140.

4 North Vernon v. Voegler, 103 Ind. 314.

to be a wrong-doer forever by the payment of the recovery against it? Shall it have no benefit by discontinuing the wrong, and shall it not be left the option to discontinue it? And shall the plaintiff be obliged to anticipate his damages with prophetic ken and foresee them long before, it may be many years before they actually occur, and recover them all in his first action? I think it is quite absurd and illogical to assume that a wrong of any kind will forever be continued and that the wrong-doer will not discontinue or remedy it, and that the convenient and just rule, sanctioned by all the authorities in this state, and by the great weight of authority elsewhere, is to permit recoveries in such cases by successive actions until the wrong or nuisance shall be terminated or abated." 1

§ 117. Contracts of indemnity. Upon contracts of indemnity if there has been a breach before suit brought, any actual damage subsequently resulting therefrom, or payments made by the indemnified party covered by the agreement after as well as before the commencement of suit, and down to the [191] time of the trial, may be included in the recovery.2 So if the defendant's breach of any contract or his wrongful act has involved the injured party in a legal liability to pay money, or he has incurred indebtedness to a third person, or expenses to relieve against the effects of the act which constitutes the cause of action, such liability, indebtedness or expenses, paid or not, constitutes an element of damage without regard to the time when it was actually incurred or discharged.3

1 The writer of the opinion cited Rosewell v. Prior, 2 Salk. 460; Bowyer v. Cook, 4 M., G. & S. 236; Holmes v. Wilson, 10 A. & E. 503; Thompson v. Gibson, 8 M. & W. 281; Mitchell v. Darley Main Colliery Co., 14 Q. B. Div. 125; Whitehouse v. Fellowes, 10 C. B. (N. S.) 765; Esty v. Baker, 48 Me. 495; Russell v. Brown, 63 id. 203; Cumberland C. Co. v. Hitchings, 65 id. 140; Bare v. Hoffman, 79 Pa. St. 71; Thompson v. Morris C. & B. Co., 17. N. J. L. 480; Thayer v. Brooks. 17 Ohio, 489; Anderson, etc. R. Co. v. Kernodle, 54

Ind. 314; Harrington v. St. Paul, etc. R. Co., 17 Minn. 215; Adams v. Hastings & D. R. Co., 18 id. 260; Ford v. Chicago & N. R. Co., 14 Wis. 609; Carl v. Sheboygan, etc. R. Co., 46 id. 625; Blesch v. Chicago & N. R. Co., 43 id. 183; Greene v. New York, etc. R. Co., 65 How. Pr. 154; Taylor v. Metropolitan E. Ry. Co., 50 N. Y. Super. Ct. 311; Duryea v. Mayor, etc., 26 Hun, 120, and other cases in New York.

2 Spear v. Stacy, 26 Vt. 61.

3 Id.; Dixon v. Bell, 1 Stark. 287; Hagan v. Riley, 13 Gray, 515; Smith