McConnel v. Kibbe

29 Ill. 483

• Court: Illinois Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

Walker, J.

The first question presented, by this record, is, whether an action on the case accrues, by the continuance of a nuisance. Whether its continuance, distinct from its creation, is a cause of action. If its continuance, without reference to the original act from which the nuisance proceeds, is a grievance for which the action may be maintained, then a recovery may be had for damages growing out of its continuance, although the statute of limitations may have barred a recovery, for the original wrongful act. In this case, the original act, which it is claimed has produced the injury, was committed more than five years before the suit was instituted. But it is claimed, that the injury has been sustained within that period. And that it had been more considerable within that period than at any former time. Although the declaration counts upon the damage, growing out of the change made in the wall, yet to the plea of the statute of limitations, a replication was filed, averring, that the injury had resulted from the continuance” o the nuisance, and had accrued within five years before suit was brought. A demurrer was sustained to this replication, which is assigned for error.

It is a maxim of the law, that an injury cannot be committed, without the law affords a remedy. If a recovery cannot be had for actual injuries, resulting as a consequence, long after the act has been performed, there would be no remedy. The act itself may produce no present injury, yet subsequent damage may be traced directly to, and be consequent upon, the performance of the act. In Great Britain, as well as in this country, the rule seems to be well recognized, that an action on the case for a private nuisance, such as the diversion or obstruction of a watercourse, or a private way, must be brought within the period allowed for an entry upon the land itself. It is also a rule, that the continuance of that which was originally a nuisance, is regarded as a new nuisance, and although a recovery may be barred upon the original cause under the statute of limitations, an action on the case may be brought at any time before an entry is barred, to recover such damages as have accrued, by reason of its continuance, within the statutory period. See Angell on Lim. 325, and authorities there cited. Staples v. Spring, 10 Mass. 72; Roberts v. Reed, 16 East, 215. It then follows, that although an action for changing the condition of the wall of this building was barred, still a recovery might be had for injuries resulting from that change, within five years before a suit was brought.

The correctness of this judgment, then, depends upon whether this was an action to recover for the original act, which was barred, or for injuries resulting therefrom, within five years. The declaration in the several counts avers, that the defendant, with the intention, wrongfully and unlawfully, to injure the plaintiff, in his reversionary interest, cut away and removed a portion of the partition wall, etc., whereby that part of the tenement belonging to plaintiff, was injured and greatly damaged, broken, etc. It was also averred, that the change made in the wall occurred severally in 1851, 1852, and 1853, and at divers times since then until the commencement of the suit. It is also averred, that the wall has been and continued to be injured permanently. This does not indicate an intention to rely upon the continuance of the nuisance, but the original cause of action. This is evidently the construction put upon the declaration, by the pleader, as he attempts to new assign, or enlarge his grounds of recovery by his replication, by replying the continuance of the nuisance until the suit was brought.

The gravamen of the suit was the creation, and not the continuance, of the nuisance. It then follows, that the demurrer to the replication was properly sustained, and the modifications to plaintiff’s instructions properly made, as they were in accordance with the views here presented. The practice does not allow suit to be brought on one cause of action, and when a complete bar is presented, to set up and rely upon another for a recovery. The court below committed no error in sustaining the demurrer, or in modifying the plaintiff’s instructions.

The judgment must be affirmed. Judgment affirmed.