Cheshire Turnpike v. Stevens

13 N.H. 28

Opinion

Upham, J

Footnotes

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In the present action the main question in controversy is as to the right of the plaintiffs to maintain a second suit, for damage arising from continuing open a highway around their turnpike gate, so that the plaintiffs were unable to collect their usual rates and tolls over their turnpike.

The exception is taken to recovery by the plaintiffs, under their present declaration that damage has been already claimed for the opening of the highway, and judgment has been recovered for all the injury occasioned by such opening. If the declaration in this case was for this cause, evidence of a former recovery for the same ground of action would be a bar to this suit. The declaration, however, though it alleges the original wrong in the laying out the biighway, sets out a continuation of such wrong, and claims damage only for such continuance for a given time ; to wit., from the 27th of March, 1831, to August, 1833, all of which time is subsequent to the former suit, and is for an entirely new claim of damage.

The wrong in the original laying out is properly alleged in the present suit. It should be both stated and proved, to show that the continuance of the highway is a continuance of such wrong. This is an essential part of the declaration ; ■and as long as no 'damage is claimed for any time named in the former action, that action does not conflict with the present, and the exception taken to the declaration in this partic-' ular cannot prevail.

But it is contended, admitting the declaration to be properly drawn in point of form for damage from continuing the highway, still no action can be maintained in law for such continuance, after recovery has once been had for opening the way.

But this is erroneous. The cause of action remains so long as the cause of injury is upheld by the defendants. It has been in the defendants’ power at any time to discontinue the grievance complained of; and so long as this power remains, it would be unjust to visit him with damages, except during the actual time the damage has been sustained. The injury is not necessarily permanent in its character, and recovery, therefore, can only be had for the past, as it may cease at any moment. The injury is of the same character as that arising from a nuisance, and is subject to the same rule of law. In this case, by opening a highway illegally and maliciously, the public travel is diverted around the plaintiffs’ toll gato, and its effect is the same as a nuisance thrown across a water-course, by which water is diverted from a mill. In either caso, so long as the nuisance or wrong is continued, the party sustaining the injury may, from time to time, have his remedy for damage.

Where property affected by a nuisance has been aliened, the alienee, after request made to remove or abate the nuisance, may maintain an action for the continuance of the nuisance. 5 Coke 100, Penruddock's Case.

If the party against whom a verdict in an action on the case for nuisance has been recovered, does not abate the nuisance, another action may be brought for continuing the nuisance, in which the jury will be directed to give large damages. It is said to be usual, in the first action, to give nominal damages only, which, however, entitle the plaintiff to full costs. 10 Mass. Rep. 74, Staple vs. Spring & al. ; Salk. 460, Rosewell vs. Prior; 3 Stark. Ev. 991; Com. Dig., Action on the Case for Nuisance, B.

The remedy clearly subsists for any continuing nuisance, or wrong done to an estate, where the extent of such wrong may be apportioned from time to time, and goes not at once to the entire destruction of the estate. In this case, even if the defendant had prevailed in the original action, a new suit might be had for a continuing injury. A verdict for the defendant in a former action, for diverting water from his mills, is evidence, but not conclusive for the defendants in a second action for a subsequent damage. 2 Barn. & Ald. 662. So a verdict for the plaintiff, in an action for obstructing his barges, in a navigable river, is strong but not conclusive evidence in an action for a similar obstruction. 5 Taunt. 705, Mills vs. Rose.

Judgment on the verdict.

Parker, C. J., did not sit.