the date of the flood, and, while the examination was somewhat indefinite, it was sufficient, we think, to take the question to the jury. The testimony as to the value of the land at the time of the construction of the embankment, which was within a year or less before the alleged injury, was perhaps objectionable if the case was being tried as one for continuing damages; but no specific objection was made thereto as being too remote. Plaintiff was presenting her case evidently upon the theory that her damages were original, 482 and, if defendant wished to raise the point that they were continuing, we think it should have made its position clear, and, failing to do so, it cannot accomplish a successful ambuscade under cover of a general objection that the evidence is "incompetent, irrelevant and immaterial, and not a correct measure of recovery." In the absence of any demand by defendant that the damages be assessed as original, rather than continuing, there was no error in the admission of the testimony offered which would justify us in holding that the case should not, in any event, have been submitted to the jury: Hollenbeck v. Marion, 116 Iowa, 69, 89 N. W. 210.

4. If the conclusion stated in the preceding paragraph be unsound, and it be conceded that there was no evidence affording a proper measure of actual damages, it still remains true that if, by reason of the defendant's neglect in failing to provide a suitable culvert, the water was backed up over plaintiff's land, she was entitled to recover nominal damages, and to have the case go to the jury for that purpose: Woodman v. Tufts, 9 N. H. 88; Casebeer v. Mowry, 55 Pa. 419, 93 Am. Dec. 766; Morman v. Ames, 12 Minn. 451 (Gil. 347); Jackman v. Arlington Mills, 137 Mass. 277; Hooten v. Barnard, 137 Mass. 36; Wells v. New Haven etc. Co., 151 Mass. 46, 21 Am. St. Rep. 423, 23 N. E. 724; Gould on Waters, 3d ed., sec. 210; Hathorne v. Stinson, 12 Me. 183, 28 Am. Dec. 167; Plate v. New York C. R. R. Co., 37 N. Y. 472; Dixon v. Clow, 24 Wend. (N. Y.) 188; Foster v. Elliott, 33 Iowa, 216; Plumleigh v. Dawson, 1 Gilm. (Ill.) 544, 41 Am. Dec. 199; Watson v. Van Meter, 43 Iowa, 76; Tootle v. Clifton, 22 Ohio St. 247, 10 Am. Rep. 732. We do not overlook the fact that we have often held that failure to award nominal damages, where a plaintiff is entitled to nothing more, is not a ground for reversal: Crawford v. Bergen, 91 Iowa, 675, 60 N. W. 265; Am. St. Rep., Vol. 113-32

Portman v. Klemish, 54 Iowa, 198, 6 N. W. 265; Rowley v. Jewett, 56 Iowa, 492, 9 N. W. 353; Phoenix Ins. Co. v. Findley, 59 Iowa, 591, 13 N. W. 738; Wise v. 483 Foster, 62 Iowa, 114, 17 N. W. 174; Norman v. Winch, 65 Iowa, 263, 21 N. W. 598; Lippert v. Lippert, 110 Iowa, 550, 81 N. W. 777; Rice v. Whitley, 115 Iowa, 748, 87 N. W. 694. The thought of these cases and the reason of the rule is that this court does not sit to determine mere moot questions, or questions which involve matters of merely abstract or technical right, the decision of which determines nothing beyond the taxation of costs. This is as far as we have ever gone in the application of the rule. There are cases, however, in which the recovery of nominal damages determines and adjudicates valuable rights, and under such circumstances the refusal to allow them is reviewable upon appeal. The case before us is of that nature. The recovery of even nominal damages would operate as an adjudication of the insufficiency of the culvert, and that adjudication would be binding upon the parties in any subsequent action brought for the continuance of the nuisance: Bennett v. Marion, 119 Iowa, 473, 93 N. W. 558; Gould on Waters, 3d ed., sec. 210; Casebeer v. Mowry, 55 Pa. 419, 93 Am. Dec. 766; Plate v. New York C. R. R. Co., 37 N. Y. 472; Mersereau v. Pearsall, 19 N. Y. 108. Title to land is not infrequently determined by an award or denial of nominal damages for an alleged wrong. The act of the defendant in the present case in erecting the embankment in such manner as to cast the water back upon the plaintiff's land was equivalent to the assertion of an easement therein, and it might well happen that an action to recover nominal damages would be the most efficient method by which to prevent the acquisition of such easement by prescription: Hathorne v. Stinson, 12 Me. 183, 28 Am. Dec. 167. Says the court in the cited case: "When one encroaches upon the inheritance of another the law gives a right of action, and even if no actual damages are proved, the action will be sustained and nominal damages recovered, because unless this could be done the eneroachments acquiesced in might ripen into a legal right": See, also, Bassett v. Manufacturing Co., 28 N. H. 438; Delaware etc. Canal Co. v. Torrey, 33 Pa. 143. This court recognized and conceded the correctness 484 of this proposition in one of the earliest cases in which the merely technical right to nominal damages was held an insufficient ground

for reversal: See Watson v. Van Meter, 43 Iowa, 76. In that case, after announcing the rule referred to, we said: "It is true that if plaintiff is entitled to nominal damages for the purpose of establishing a permanent right, and the jury fail to assess such damages, a new trial should be granted."

So far as the question of practice in this branch of the case is concerned, the order of the trial court directing a verdict for the defendant is also erroneous, within the spirit of the decision in Carl v. Granger Coal Co., 69 Iowa, 519, 29 N. W. 437. In that case the plaintiff showed himself entitled to nominal damages only, but the jury returned a verdict in his favor for substantial damages. The trial court having entered judgment for defendant notwithstanding the verdict, we held it to be erroneous, saying: “The plaintiff was clearly entitled to judgment in his favor, unless the verdict was set aside for some sufficient reason. This has not been done, and when such a motion is made and comes on for hearing, it would be competent to give plaintiff the option of taking a judgment for a nominal amount."

For the reasons stated, a new trial must be ordered, and the judgment appealed from is therefore reversed.

The Liability of Railroad Companies for interfering with the natural flow of surface waters is discussed in the monographic note to Mizzell v. McGowan, 85 Am. St. Rep. 718, and in the cases of Shahan v. Alabama etc. R. R. Co., 115 Ala. 181, 67 Am. St. Rep. 20; Missouri Pac. Ry. Co. v. Keyes, 55 Kan. 205, 49 Am. St. Rep. 249; Edwards v. Charlotte etc. R. R. Co., 39 S. C. 472, 39 Am. St. Rep. 746. According to Uhl v. Ohio River R. R. Co., 56 W. Va. 495, 107 Am. St. Rep. 968, the failure of a railroad company to make culverts in its embankments of sufficient capacity to permit the overflow water from an adjacent river to rise and fall with the stream is negligence, creating a liability to a property owner thereby injured; but according to Johnson v. Southern Ry. Co., 71 S. C. 241, 110 Am. St. Rep. 572, if surface water is thrown back on land by a railroad embankment constructed with due care, the resulting damages are included in the compensation received in the condemnation proceedings. See, further, Ginter v. St. Mark's, 95 Minn. 14, 111 Am. St. Rep. 458.

If a Cause of Action is in Nature Permanent, and the recovery for such injury would confer a license on the defendant to continue it, entire damages may be recovered in a single action; but where the cause is not permanent in character, but such that it may be supposed that the defendant would remove it rather than suffer at once a heavy recovery for entire, permanent and lasting damages, including the future, damages cannot be recovered in a single action, but actions may be maintained repeatedly as long as the cause of injury continues

to inflict damages: Hurthal v. Boom Company, 53 W. Va. 87, 97 Am. St. Rep. 954, and see the cases cited in the cross-reference note thereto. Consult, also, Knapp etc. Mfg. Co. v. New York etc. R. R. Co., 76 Conn. 311, 100 Am. St. Rep. 994; Suter v. Wenatchee Water Power Co., 35 Wash. 1, 102 Am. St. Rep. 881.

HILD v. HILD.

[129 Iowa, 649, 106 N. W. 159.]

DEEDS—Delivery-Presumption.-A

strong presumption of

the delivery of a deed arises when it is given to one of the grantees and is retained by him for two years and until his death. (p. 501.) HOMESTEADS-Partition of.-A homestead, though not liable for the debts of its deceased owner, may be partitioned prior to the settlement of his estate in probate. (p. 501.)

F. L. Goeldner, for the appellants.

Stockman & Hamilton, for the appellee.

650 Per CURIAM. The title to forty acres of the land in controversy was formerly in one Nicholas Besser. Nicholas Hild and his wife were in possession of the property when the husband died intestate, June 26, 1904. It now appears that on May 5, 1902, Besser executed a conveyance of the land to Nicholas Hild and Margaret Hild jointly, and for some reason placed it in the possession of Nicholas Hild. Thereafter, on May 14, 1902, Besser executed another conveyance of the same property to Nicholas Hild individually, but did not take up or resume possession of the one first made. The controversy in this proceeding is whether the title passed by the first or second conveyance here mentioned.

It is the contention of appellants that the first deed was never delivered as such, but was taken by Hild for examination, and, not being satisfied to accept it in that form, the second deed was made and duly delivered. The plaintiff's claim is upon the theory that the first deed was duly delivered and that a subsequent change of the grantor's mind or a delivery of the new conveyance could not have the effect to eliminate the vested right of Margaret Hild as a grantee. It will be observed that the question here raised turns entirely upon the fact whether there was any delivery of the

first deed. It is true that the mere fact that the instrument passed into the hands of Nicholas Hild is not of itself sufficient to constitute a delivery, but the fact that it was placed in his possession and remained there until his death two years later carries with it a very strong presumption of delivery, a presumption which could be overcome only upon a clear and satisfactory showing that no delivery was intended by 61 the parties. The trial court, having the witnesses before it, found for the plaintiff, and from an examination of the record we are inclined to coincide with that conclusion. There is nothing in the testimony calling for any special discussion by this court.

It is next urged that a partition of the real estate cannot be had until the debts of the estate are paid. It appears from the record that the tract in question is a homestead, and so far as shown it is not and cannot be liable for the debts of the deceased. We see, therefore, no reason why partition should be delayed for a settlement of the estate. The decree of the district court is affirmed.

Partition in connection with the distribution of the estates of decedents is the subject of a monographic note to Buckley v. Superior Court, 41 Am. St. Rep. 140-151.

SIOUX CITY v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

[129 Iowa, 694, 106 N. W. 183.]

EQUITY-Municipal Corporations.-Whoever appeals to equity for relief must do so with clean hands and an apparently clear conscience. This rule applies as well to a municipal corporation as to an individual or other corporation. (p. 507.)

ESTOPPEL-Municipal Corporations-Inconsistent Positions.If a city in an action involving the title to land asserts title thereto, and alleges that in reliance thereon it has conveyed a portion of the land to a codefendant, it cannot thereafter claim such land from its codefendant, although in such suit no issue or defense was joined in by the city and the codefendant. (p. 508.)

ESTOPPEL Against Municipal Corporations-Dedication.-If land is dedicated to a city and thereafter used for the very purposes for which the dedication was made and intended, the city is estopped to deny such use. (p. 509.)