Hardesty v. Ball

43 Kan. 151

• Court: Supreme Court of Kansas
• Decided: January 15, 1890
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

^áges-mü-8111" to abate — limUpon the rehearing of this case our attention has been particularly called to the petition, which shows that in the action commenced on the 5th of December, 1883, Hardesty considered the obstruction of the mill-dam erected by Ball to be a temporary obstruction or injury only, and prayed for an injunction to restrain the maintenance of the dam at such height as to back-flow the water upon his mill. In the action commenced on the 8th of April, 1887, Hardesty also considered the obstruction of the mill-dam as a temporary injury only, and subject to abatement. If the plaintiff had chosen to consider the obstruction of the mill-dám as a permanent injury to the property, §14, chapter 66, Compiled Laws of 1885, would have had full application; as, however, he commenced his action to abate the dam on the 5th of December, 1883, less than two months from the time the dam was completed, it is not fair or just to say he ever considered the dam a permanent or lasting obstruction. If he shall succeed in having the dam abated or reduced in height so as not to back-flow water upon his own mill, of course the obstruction complained of cannot be called permanent. In this view of the case, said § 14 has no application. That section applies to such dams as are constructed under the statute, and to such dams as are considered permanent and lasting — not to those dams against which proceedings are brought, within the two years after their completion, for abatement or removal.

The plaintiff had the privilege to consider the dam a temporary injury only, and in both actions he has sued for the special or temporary damages which have occurred as a temporary obstruction or nuisance. In the first action he recovered damages to the date of the trial of the case in 1885. His last action is for the special or temporary damages which have occurred since that date. (Railroad Co. v. Andrews, 26 Kas. 702; Akin v. Davis, 11 id. 580; Hendricks v. Johnson, 6 Porter, 472; Union Trust Co. v. Cuppy, 26 Kas. 754; McCoy v. Danley, 20 Pa. St. 85; Stadler v. Grieben, 61 Wis. 500; K. P. Rly. Co. v. Mihlman, 17 Kas. 231; C. B. & Q. Rly. Co. v. Schaffer, Ill., 16 N. E. Rep. 239.) It would be unfair to the plaintiff, when he has treated in both his actions the dam as a temporary injury only, and as he has an action now pending to abate or remove a part of it, to say he has chosen to consider the dam a permanent and lasting injury to his mill. The prior decision of this court was rendered with the view that the dam was a permanent obstruction, and therefore within the statute of limitations of said §14, chapter 66.

In Railway Co. v. Mihlman, supra, this court ruled that—

“ Where one creates a nuisance, and permits it to remain, so long as it remains it is treated as a continuing wrong, and giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrongdoer is, that he has a legal right, and is under a legal duty, to terminate the cause of the injury.”

In Union Trust Co. v. Cuppy, supra, Mr. Justice Valentine, speaking for this court, said:

“The wrong committed by the defendants was in the nature of a nuisance, and a continuing nuisance; and while possibly the plaintiff might at any time have had an action to abate the nuisance, yet he nevertheless had the right to sue at any time after any particular damage was done him, for the amount of such damage. It is possible, also, that the plaintiff might have waived his right at any time to consider the obstruction of the stream as a nuisance, and might have considered it as giving to the defendant a permanent right, a permanent easement upon his land, and then have sued the railroad company for the permanent injury to his land, and recovered for the injury as in a condemnation proceeding; but he was not bound to treat the obstruction as an easement, or to waive his right to treat it as a nuisance.”

As to the right of Hardesty to recover, if the defendant has committed the wrongful acts complained of, see Akin v. Davis, 11 Kas. 580; Hendricks v. Johnson, 6 Porter, 472; Bigelow v. Newell, 10 Pick. 348-356; Cary v. Daniels, 8 Met. 466; Ten Eyck v. Canal Co., 18 N. J. L. 200.

The law as declared in the original opinion filed is fully affirmed; but on account of the allegations in the petition that an action is pending by Hardesty to abate or lower the dam, a portion of the language in the original opinion is misleading, and therefore must be qualified and corrected. The district court, in its discretion, will have ample power to delay the trial of this case until the injunction proceedings recited in the petition are disposed of.

The judgment heretofore rendered in this case in this court will be vacated, and the judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.