Mr. Justice Hayt
delivered the opinion of the court.
The county court was without jurisdiction in the condemnation proceedings, the amount of award being in excess of $2,000. Railroad Co. v. Church, 7 Colo. 143; Railway Co. v. Otis, 7 Colo. 198. A decision had not, however, been rendered in either of the cases cited at the time of the trial in the county court, and the parties to the condemnation proceedings treated the same as valid, the appellant paying and the appellee accepting the amount of the judgment awarded by that court. The appellant shortly thereafter entered into the possession of the lands condemned, and has since occupied the same, with its ditch and reservoir. Under these circumstances it becomes necessary to determine the status of the party under such void proceedings. It is a' familiar principle of the law that a party accepting and retaining the fruits of a void judgment is estopped from assailing the judgment itself. Kile v. Town of Yellowhead, 80 Ill. 208; Town v. Town of Blackberry, 29 Ill. 137; Felch v. Gilman, 22 Vt. 39; Embury v. Conner, 3 N. Y. 511; Hitchcock v. Railroad Co. 25 Conn. 516. In none of the cases, cited, however, did it become necessary to determine the effect of receiving the benefits of a judgment void for the want [437]*437of jurisdiction in the court over the subject-matter of the suit, although the language used in some of the opinions is broad enough to cover such cases. In the case at bar the court below, in some of the instructions given to the jury, seems to have drawn a distinction between the case of a party accepting the fruits of a judgment rendered by a court without jurisdiction of the subject-matter and a case in which the party has received the fruits of a judgment voidable for the want of jurisdiction over the person, or on account of some informality occurring in the proceedings antecedent to judgment; but this theory is expressly waived by counsel for appellee in their argument filed in this court, and after diligent search I have been unable to find any authority in support of the theory of the trial court. Nothing in the testimony indicates that at the time the appellant paid and the appellee received the amount of the judgment of the county court either party entertained a suspicion of the invalidity of such judgment, .and under these circumstances we must presume that both parties were acting in good faith under the belief that the proceedings in that court were valid and binding, and that the judgment there rendered had all the force and effect of a valid judgment, and that the. money was paid and the land taken with this understanding. And as appellee, after the notice of the invalidity of such proceeding, continued to retain the money so paid, I am of the opinion that he is estopped from denying the validity of such judgment, and that he should be held bound by that adjudication the same as he would have been had the court had complete jurisdiction, and that for the purposes of this action the same should be treated in all respects as a valid judgment. See Kile v. Toivn of Yellowhead and other cases cited supra.
It appears from the testimony adduced upon the trial in the district court that a large number of witnesses were examined in the condemnation proceedings in ref[438]*438erence to the damages that would probably result to ap- ' pellee’s land by reason of seepage and leakage of water from the ditch and reservoir; and under the instructions of the county court the jury were permitted to consider and allow for such damages in that proceeding if they saw proper, but it does not affirmatively appear that such elements of damage were in fact allowed. One juror, sworn as a witness upon the trial in the district court, testified that damages for seepage and leakage were not allowed; other jurors testifying that such matters were taken into consideration by the jury, but could not state whether any damages were allowed for the same or not. Under such circumstances I think it would be very difficult to say just what consideration influenced the mind of each juror in the condemnation proceeding in arriving at the conclusion that the sum of $1,500 should be allowed the appellee as proper compensation for the damages to result to the balance of his land; but, if the judgment of the county court is to be treated as valid, the consideration of this question is not material, for a valid judgment is conclusive between the parties, not only as to such matters as were in fact determined in that proceeding, but as to every other matter which the parties might have litigated-as incident to, or essentially connected with, the subject-matter of the litigation, whether the same as a matter of fact were or were not considered. Freem. Judgm. § 249; Sabin v. Railroad Co. 25 Vt. 363. This principle was recognized by the learned judge in the trial below, in the instructions to the'jury, upon defendant’s plea of res judicata; for, after telling the jury that the plaintiff could not recover for the damages in fact allowed by the jury in the county court, they were also instructed that the law presumed that all past, present and future damages which the improvement would cause, so far as the same might have been reasonably foreseen or anticipated, were included in the award of the jury in the condemnation proceedings. Under these [439]*439and other instructions the jury were left, however, to determine whether the damages claimed might have been reasonably foreseen or anticipated by the jury in the condemnation proceeding, and, if not, they were instructed that the appellee might recover for such damages in this action as well as for damages arising from unskilful or negligent construction or use of the ditch or reservoir, and this is assigned for error.
Upon my first examination of this case I was of the opinion, in opposition to the views of the Chief Justice, that there was no error in these instructions; but upon reflection, and after an examination of the authorities, I have concluded that my first impressions were erroneous, and that the rule in reference to the conclusiveness of condemnation proceedings under statutes similar to our own, which is supported by the better considerations and recognized by the strong 'weight of judicial authority, requires us to hold that damages resulting from seepage and leakage from the ditch and reservoir, not resulting from negligent or unskilful construction or use thereof, ought to have been foreseen and allowed in the condemnation proceedings, consequently are not recoverable in this action, no matter whether such damages were, as a matter of fact, allowed or not. It is provided by our statute that in condemnation proceedings the owner or parties interested in the real estate taken shall be awarded damages, not only for the land or property taken, but also the damages, if any, resulting to the residue of such land or property. The reported cases under similar statutes have generally treated of the damages recoverable for the seizure of land under the right of eminent domain, for railroad or highway purposes; and, so far as I have investigated the decisions, I find the general current of authority to be that all the damages, present and prospective, that are the natural, necessary or reasonable incident of the improvement, must be assessed in the condemnation proceedings, not including such as may [440]*440arise from negligent or unskilful construction or use thereof. Mills, Em. Dom. § 216; Sabin v. Railway Co. supra; Aldrich v. Railway Co. 21 N. H. 359; Railway Co. v. Hopkins, 90 Ill. 316; Sawyer v.
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Mr. Justice Hayt
delivered the opinion of the court.
The county court was without jurisdiction in the condemnation proceedings, the amount of award being in excess of $2,000. Railroad Co. v. Church, 7 Colo. 143; Railway Co. v. Otis, 7 Colo. 198. A decision had not, however, been rendered in either of the cases cited at the time of the trial in the county court, and the parties to the condemnation proceedings treated the same as valid, the appellant paying and the appellee accepting the amount of the judgment awarded by that court. The appellant shortly thereafter entered into the possession of the lands condemned, and has since occupied the same, with its ditch and reservoir. Under these circumstances it becomes necessary to determine the status of the party under such void proceedings. It is a' familiar principle of the law that a party accepting and retaining the fruits of a void judgment is estopped from assailing the judgment itself. Kile v. Town of Yellowhead, 80 Ill. 208; Town v. Town of Blackberry, 29 Ill. 137; Felch v. Gilman, 22 Vt. 39; Embury v. Conner, 3 N. Y. 511; Hitchcock v. Railroad Co. 25 Conn. 516. In none of the cases, cited, however, did it become necessary to determine the effect of receiving the benefits of a judgment void for the want [437]*437of jurisdiction in the court over the subject-matter of the suit, although the language used in some of the opinions is broad enough to cover such cases. In the case at bar the court below, in some of the instructions given to the jury, seems to have drawn a distinction between the case of a party accepting the fruits of a judgment rendered by a court without jurisdiction of the subject-matter and a case in which the party has received the fruits of a judgment voidable for the want of jurisdiction over the person, or on account of some informality occurring in the proceedings antecedent to judgment; but this theory is expressly waived by counsel for appellee in their argument filed in this court, and after diligent search I have been unable to find any authority in support of the theory of the trial court. Nothing in the testimony indicates that at the time the appellant paid and the appellee received the amount of the judgment of the county court either party entertained a suspicion of the invalidity of such judgment, .and under these circumstances we must presume that both parties were acting in good faith under the belief that the proceedings in that court were valid and binding, and that the judgment there rendered had all the force and effect of a valid judgment, and that the. money was paid and the land taken with this understanding. And as appellee, after the notice of the invalidity of such proceeding, continued to retain the money so paid, I am of the opinion that he is estopped from denying the validity of such judgment, and that he should be held bound by that adjudication the same as he would have been had the court had complete jurisdiction, and that for the purposes of this action the same should be treated in all respects as a valid judgment. See Kile v. Toivn of Yellowhead and other cases cited supra.
It appears from the testimony adduced upon the trial in the district court that a large number of witnesses were examined in the condemnation proceedings in ref[438]*438erence to the damages that would probably result to ap- ' pellee’s land by reason of seepage and leakage of water from the ditch and reservoir; and under the instructions of the county court the jury were permitted to consider and allow for such damages in that proceeding if they saw proper, but it does not affirmatively appear that such elements of damage were in fact allowed. One juror, sworn as a witness upon the trial in the district court, testified that damages for seepage and leakage were not allowed; other jurors testifying that such matters were taken into consideration by the jury, but could not state whether any damages were allowed for the same or not. Under such circumstances I think it would be very difficult to say just what consideration influenced the mind of each juror in the condemnation proceeding in arriving at the conclusion that the sum of $1,500 should be allowed the appellee as proper compensation for the damages to result to the balance of his land; but, if the judgment of the county court is to be treated as valid, the consideration of this question is not material, for a valid judgment is conclusive between the parties, not only as to such matters as were in fact determined in that proceeding, but as to every other matter which the parties might have litigated-as incident to, or essentially connected with, the subject-matter of the litigation, whether the same as a matter of fact were or were not considered. Freem. Judgm. § 249; Sabin v. Railroad Co. 25 Vt. 363. This principle was recognized by the learned judge in the trial below, in the instructions to the'jury, upon defendant’s plea of res judicata; for, after telling the jury that the plaintiff could not recover for the damages in fact allowed by the jury in the county court, they were also instructed that the law presumed that all past, present and future damages which the improvement would cause, so far as the same might have been reasonably foreseen or anticipated, were included in the award of the jury in the condemnation proceedings. Under these [439]*439and other instructions the jury were left, however, to determine whether the damages claimed might have been reasonably foreseen or anticipated by the jury in the condemnation proceeding, and, if not, they were instructed that the appellee might recover for such damages in this action as well as for damages arising from unskilful or negligent construction or use of the ditch or reservoir, and this is assigned for error.
Upon my first examination of this case I was of the opinion, in opposition to the views of the Chief Justice, that there was no error in these instructions; but upon reflection, and after an examination of the authorities, I have concluded that my first impressions were erroneous, and that the rule in reference to the conclusiveness of condemnation proceedings under statutes similar to our own, which is supported by the better considerations and recognized by the strong 'weight of judicial authority, requires us to hold that damages resulting from seepage and leakage from the ditch and reservoir, not resulting from negligent or unskilful construction or use thereof, ought to have been foreseen and allowed in the condemnation proceedings, consequently are not recoverable in this action, no matter whether such damages were, as a matter of fact, allowed or not. It is provided by our statute that in condemnation proceedings the owner or parties interested in the real estate taken shall be awarded damages, not only for the land or property taken, but also the damages, if any, resulting to the residue of such land or property. The reported cases under similar statutes have generally treated of the damages recoverable for the seizure of land under the right of eminent domain, for railroad or highway purposes; and, so far as I have investigated the decisions, I find the general current of authority to be that all the damages, present and prospective, that are the natural, necessary or reasonable incident of the improvement, must be assessed in the condemnation proceedings, not including such as may [440]*440arise from negligent or unskilful construction or use thereof. Mills, Em. Dom. § 216; Sabin v. Railway Co. supra; Aldrich v. Railway Co. 21 N. H. 359; Railway Co. v. Hopkins, 90 Ill. 316; Sawyer v. Keene, 47 N. H. 173; Van Schoick v. Canal Co. 20 N. J. Law, 249.
An examination of the reported cases shows that there is no substantial difference in the general rules applicable to the assessment of damages in condemnation proceedings, as announced by the courts of last resort, but in the application of such rules to particular cases the same uniformity has-not been observed; still no case has been called to our attention which by any fair construction can be held to be in conflict with the conclusion that damages for seepage and leakage should have been determined in the first proceeding. In Sabin v. Railroad Co. 25 Vt. 363, plaintiff was allowed,to recover for injuries arising from the making and use, in constructing its railroad, of an ordinary cartage road upon plaintiff’s adjoining land by the railroad company. In the case of Railway Co. v. Magruder, 34 Md. 79, the facts were that the right of way for a railroad had been condemned through the farm of M., and in the course of the construction of the railroad the channel of a natural stream was changed by the company so as to divide the water from the rest of the farm. Eor the damages occasioned by such diversion, M.’s action to recover was sustained. Neither the construction of a wagon road over the land not taken nor the diversion of a natural stream from its course is a natural, necessary or reasonable incident of the improvement. In Railway Co. v. Gilleland, 56 Pa. St. 445, and in Railroad Co. v. Daniel, 20 Grat. 349, the specific injuries complained of resulted from the failure to exercise proper care in the construction of the railroads; and in many of the other cases cited by counsel for appellee the injuries for which a recovery was sustained clearly resulted from negligence in the construction of the improvement. On the contrary, it has been [441]*441decided that the owner, for the purpose of determining the decrease in the value of the premises resulting from the improvement, is entitled to have the jury consider such remote contingencies as the liability to fires and to the frightening of horses from passing trains (Wisconsin); increased inconvenience in the use of the remainder, and annoyance likely to be caused by the smoke and noise of passing trains (New York); liability to loss of the use of a spring by having subterranean water channels cut off (New Hampshire); increased liability to overflow of water resulting from the construction of a canal (Maryland); and damages arising from seepage and leakage from a canal (New Jersey). Blesch v. Railroad Co. 48 Wis. 168; In re Railroad Co. 56 Barb. 456; Aldrich v. Railway Co. 21 N. H. 359; Canal Co. v. Grove, 11 Gill & J. 398; Van Schoick v. Canal Co. supra. The decisions cited are valuable for the purpose of showing the extent to which the courts have gone in order that the entire damages may be assessed in one proceeding.
In assessing damages in condemnation proceedings for lands taken for the purpose of constructing a ditch or reservoir thereon, injuries likely to result from seepage and leakage from such canal or reservoir would naturally be among the first items to occur to a jury. And we are- not without direct authority in support of the proposition that, if damages for such injuries are not allowed in the original action, no subsequent recovery’for such injuries can be had. In the case of Canal Co. v. Grove, supra, the court held that, in estimating the value of the land taken for the use of the canal company, the jury of inquest should have allowed for the increased danger of overflow to the lands not taken, and that the owner could not thereafter recover for damages arising from an overflow of his lands resulting from the construction of the canal in the absence of negligence. In the New Jersey cases cited supra, under a statute requiring the jury in a condemnation proceeding “to assess [442]*442the value of land and the damages sustained,” the following questions were presented in a suit brought subsequent to the first assessment: “First. Whether the plaintiff was entitled by law to have his damages assessed by the former jury for the injury to his crops and land from leakage of the canal, for the loss of his road .and the carrying away his soil by the reflow of the waters occasioned by the canal embankment. Secondly. If he was entitled by law to have his damages so assessed, whether, if he omitted to claim or prove such damages before that jury, or was prevented from doing so by the court, he can maintain another and distinct action for their recovery.” It will be seen by these questions that the facts were very similar to those here presented, and in that case the court said: “I believe that the legislature intended that the award of the commissioners, or, in case that should be set aside, the verdict of the jury, followed by the judgment of the court, should be final and conclusive between the parties, both as to the value of the land and the damages sustained. And I do not believe that they ever designed that, after such proceedings, the company could be subjected, from time to time, during the whole period of its existence, to an action at law by every landholder on the line of the canal, to recover damages for some injury which he may allege was not foreseen, and for which subsequently he was not compensated. Such a construction would have been a most effectual bar to the enterprise of erecting a canal; for no man would have embarked his capital in a work the cost of which could never be ascertained till the charter expired. It may be said that it operates injuriously to an owner who sustains damages from a cause which neither the commissioners nor jury by the utmost human sagacity could see or provide against; but the defendants might urge the same objection, that they were liable to be assessed for anticipated injuries which may never occur. Entertaining this view of the ques[443]*443tion, I * * * am of opinion that the plaintiff was legally entitled to an assessment by the commissioners and former jury for all the injuries which are the subject of complaint in this action. This brings me to the second question,— whether, having omitted to do so, or having been prevented by the court from doing so, he can now maintain this action. Believing that the statute provided a remedy for the injuries complained of in this action, I consider the plaintiff as confined to that mode of relief, and barred from an action at common law. It is no answer to say that he was deprived of his remedy under the statute by the act of the court. If the court committed an error the plaintiff should have sought to have it corrected by a motion for a new trial.” It is said that the rule requiring injuries resulting from seepage and leakage to be anticipated and damages for the same allowed in the condemnation proceedings will work hardship in some cases; but, while this is doubtless true, it is believed that mischief is less likely to result under such a rule than from any decision under which the owner of the improvement might be subjected to repeated suits for injuries, which the owner of the land might think were occasioned by seepage which was unforeseen at the time of the condemnation proceedings; and I am of the opinion that it is much wiser in the case at bar and similar cases to say that such injuries should be included in the original assessment. It follows that appellee should have been limited in his recovery to such injuries as resulted from negligence or want of care in the construction of appellant’s ditch and reservoir, or in the subsequent use of the same; and it was error to permit the jury to consider and allow damages for seepage and leakage not resulting from such negligence or want of care.
The remaining questions raised by the assignment of errors are not such as are likely to arise upon a retrial of the case; and I shall not consider the same further than [444]*444to say upon the question of damages that, as to trespasses and nuisances that are not of a permanent character, damages can only be recovered for the injury sustained up to the time of the commencement of the suit, but as to trespasses and nuisances that are of a permanent character, a single recovery may be had for the whole damage resulting from the act. City of Denver v. Bayer, 7 Colo. 127. If these general rules are observed I do not apprehend that any difficulty will arise upon this question upon a retrial of the case. The judgment must be reversed and the cause remanded.
Reversed.