ants was done in the ordinary, reasonable and proper mode of working the mine.

KEATING, QUAIN, GROVE, ARCHIBALD and HONEYMAN, JJ., concurred.

Judgment reversed.

Attorneys for plaintiff: HELDER & Kirkbank.

Attorneys for defendants: GREGORY, ROWCLIFFES & Co.; for Musgrave, WHITEHAVEN.

EBENEZER WILLIAMS V. POMEROY COAL CO.

(37 Ohio State, 583. Supreme Court, 1882.)

Statute of Limitations, where flooding ultimately results from original trespass. Defendant, lessee of a coal mine, worked across bounds into the land of an adjoining proprietor, in 1861. In 1862, he quit work and surrendered the lease. The plaintiff purchased the adjoining land so trespassed upon, in 1864, worked it for coal, and, in 1868, tapped the water in defendant's abandoned workings where defendant had crossed the line. This necessitated pumping. Plaintiff commenced action for the cost of drainage in 1873; held, that the Statute of Limitations began to run from date of the original trespass, and that the action was therefore barred.

The purchaser of lands can not recover for antecedent trespasses. Trespass distinguished from nuisance. The cause of action against a

trespasser where the ultimate injury is a flooding chargeable to the tres. pass, is still the original trespass, and he is not answerable as for creating and maintaining a nuisance.

Underground and unknown trespasses. In the application of the Statute of Limitations, there is no distinction between trespasses underground and upon the surface; nor whether the action is known or unknown to the plaintiff within the time limited by the statute. Consequential damages barred. The bar to a recovery in an action for a trespass, includes all the consequences resulting from such trespass.

Error to the District Court of Meigs County.

The original action was commenced by Ebenezer Williams, plaintiff in error, against the Pomeroy Coal Company, the defendant in error, February, 1873, in the Common Pleas Court of Meigs county.

The facts as they appear in the record are substantially as follows;

Prior to January 30, 1868, one Nahum Ward owned in fee lot 1223, on the Ohio river, in Meigs county, and at the same time one Phillip Hondesheldt was the owner in fee of lot 1222, and V. B. Horton was the owner in fee of lot 301, and the latter had a lease from Hondesheldt granting the right to mine all the coal under the south half of lot 1222. On August 10, 1858, Mr. Horton conveyed to the Pomeroy Coal Company, by his lease of that date duly executed, his right to mine and take away the coal under said two tracts of land. By the terms of said lease the Pomeroy Coal Company bound itself to "quit and surrender the premises " at the end of ten years, to, wit, by August 10, 1868. The defendant entered upon the premises, and as early as 1862 had mined all the available coal thereon, and did, in that year, abandon the said lease, with the consent of the said Horton, and turned over to him the abandoned mines on said premises. The defendants, while excavating the coal on lot 1222, mined over on to the adjoining lot 1223, from thirty-six to thirty-nine feet. In 1864 the plaintiff bought lot 1223 of said Nahum Ward, and began operating the mines thereon. In June, 1868, the workmen engaged in said plaintiff's mine tapped the water which had accumulated in the abandoned mine, and it flooded the mine of plaintiff.

The working over on lot 1223 was done as early as 1861, but was not known to the plaintiff until the water flowed into his mine, as above stated.

On the trial, the plaintiff, among other things, requested the court to charge the jury as follows:

"That if the jury find that the water from the mine of the defendant commenced to flow into the mine of the plaintiff more than four years before the commencement of this action, and has continued to flow from that time up to the present time, and the plaintiff has continually, from that time to this, been compelled to pump the same out of his mine at a great expense in order to enable him to work his own mine, then he is entitled to recover all damages he has sustained within four years before the commencement of this action."

This instruction the court refused to give, but instructed

the jury, in substance, that if the flowage of water from the old mine of the defendant into the mine of the plaintiff commenced more than four years before the bringing of the suit, the right of action was barred by the Statute of Limitations. The jury returned a verdict for the defendant, on which judgment was rendered. The district court on error affirmed the judgment.

The present petition in error is prosecuted to reverse these judgments.

SIMEON NASH, and J. J. GLIDDEN, of O'Connor, Glidden & Burgoyne, for plaintiff in error.

There was no damage claimed in this action, occurring from this flow of water, until the flow began. An action of trespass could only have been brought for the trespass and value of coals removed; these consequential damages had not then occurred, hence the owner of the land could not have recovered for the damages now sued for. Here the cause of action arises, not directly from the trespass, but from the fact that the trespass was unknown to the plaintiff, and he worked his mine as though defendant had complied with the law in digging up to the line and not over it. The flow of the water from the old abandoned mine of defendant was a continuing nuisance: Bainbridge on Mines, 411; Roberts v. Read, 16 Eist, 215; Gillon v. Boddington, 1 C. & P. 541; Sutton v. Clarke, 6 Taunt. 29; Lloyd v. Wigney, 6 Bing. 489; Bonomi v. Backhouse, El., B. & El. 622; S. C., H. L. Ca. 503; Rylands v. Fletcher, 6 M. R. 129; Smith v. Kenrick, 6 M. R. 142; Smith v. Fletcher, L. R. 7 Exch. 305; S. C. 3 Eng. R. by Moak, 305; Crompton v. Lea, 6 M. R. 179; Angell on Watercourses, 378, § 335; 17 Johns. 306; 7 Pick. 76; 3 Hill, 531; 3 Taunt. 99; 30 Ala. 319; Wood on Nuisances, 12, 121; Tuthill v. Scott, 43 Vt. 525; Beard v. Murphy, 37 Vt. 104; Miller v. Laubach, 47 Pa. St. 155; Bellows v. Sackett, 15 Barb. (N. Y.) 96; Toutle v. Clifton, 22 Ohio St. 247; Martin v. Riddle, 26 Pa. St. 415; Lammier v. Francis, 23 Mo. 181; Earl v. De Hart, 1 Beasley (N. J.) 280; Ennor v. Barwell, 2 Giff. 410; Kauffmann v. Geismeier, 26 Pa. St. 407; Lattimore v. Davis, 14 La. 161; Curtis v. Eastern R. R. Co., 14 Allen, 55; Laney v. Jasper, 39 Ill. 54; Adams v.

Walker, 34 Conn. 446; Gilman v. Railroad Co., 40 Ill. 484; Sweet v. Cutts, 50 N. H. 439; Goodale v. Tuttle, 29 N. Y. 467; Hays v. Hinkleman, 68 Pa. St. 324.

He who has been the author of a nuisance is answerable for all the consequences thereof: Angell on Watercourses, § 402; Wagner v. Jermanie, 3 Denio, 206; Staples v. Spring, 10 Mass. 72; Beidelman v. Foulk, 5 Watts, 308; Pillsbury v. Moore, 44 Maine, 156; 3 Blacks. Comm. 220; Dorman v. Ames, 12 Minn. 451; Brown v. Woodworth, 5 Barb. 550; Pickard v. Collins, 23 Barb. 444; Anderson v. Dickie, 26 How. Pr. 105; Smith v. Elliott, 9 Pa. St. 345; Fish v. Dodge, 4 Denio, 311; Thompson v. Gibson, 7 M. & W. 456.

But it is said the remedy is trespass and the action is barred by the Statute of Limitations within four years from the date of the trespass, and this without regard to whether plaintiff had knowledge of the trespass or not. The action that is barred in four years is trespass, not case. The damage is continuous, and a cause of action arises in case for each resultant damage: Harsh v. Butler, Wright, 99; Thayer v. Brook, 17 Ohio, 489; Railroad Co.v. Greene County, 31 Ohio St. 338.

The rule we contend for as applicable to this case is stated in Angell on Limitations, § 300. Hodges v. Hodges, 5 Met. 205; Alexander v. Kerr, 2 Rawle, 83; 3 Rawle, 250; 3 Denio, 306; 1 N. J. 469; 2 N. J. 243; 52 Barb. 257; 3 Blacks. Comm.

220.

When there is a consequential damage, case may be maintained though the original act was a trespass: Harris v. Ryding, 5 M. & W. 60; Roberts v. Read, 16 East. 215; Raine v. Alderson, 4 Bing. (N. C.) 702; Wells v. Ody, 1 M. & W. 452; Wood on Nuisance, 116, 119; 30 L. J. C. P. 305; 12 Mod. 518; 32 N. H. 90.

GROSVENOR & VORIES and S. D. HORTON, for defendant in

error.

Has the plaintiff, upon the pleadings and the evidence, a right of recovery? We answer no, and for reasons say, 1. More than four years elapsed between the overworking complained of and the bringing of this action. 2. More than four years elapsed after the overflow of the plaintiff's mine, to

as great an extent as it ever did, and before this suit was begun. 3. More than four years elapsed after the full extent of the injury was known to plaintiff before he began this action. 4. The plaintiff did not own the mine to which the injury was done at the time the wrong, if any, was committed, was complete; and his subsequent purchase did not carry with it the right to sue for this alleged injury. 5. There is here no nuisance or continuing cause of action, for the reasons: A. The injury came of a trespass committed on the land of another, to wit: Nahum Ward, by the defendant, and was complete prior to 1862, and before the plaintiff bought the premises; and B. "No one can be charged as a continuing wrongdoer who has not the right, and is not under the duty of terminating that which causes injury": Kansas Pacific Railway v. Mihlman, 17 Kansas 224. c. When the plaintiff discovered the flow of water in 1868 it became his duty to "make reasonable efforts to prevent an increase of the injury," and having failed to do so for more than four years, he can not recover for any continuing or increased injury: Ibid. The conduct of the defendant, of which the plaintiff complains, was the committing of a trespass, and not the creating or maintaining of a nuisance: Bainbridge on Mines, 444, and cases cited. The Statute of Limitations for actions for tres

It has been

pass applies: Ibid. "The only ground for excluding or extending the statute would be fraud and mistake. distinctly held at law that fraud (even) will not prevent the statute from running": Imperial Gas Co. v. London Gas Co., 6 Exch. 39; Blair v. Bromley, 5 Hare, 542; Bainbridge on Mines, 411; 3 B. & Ald. 628; Nicklin v. Williams, L. J. N. S. Exch. 335.

WHITE, J.

The decision of this case depends upon what constituted the cause of action against the defendant, and when it accrued. The claim of the plaintiff is, that the cause of action consists of a private nuisance caused by the excavation made by the defendant on lot 1223 when removing the coal, under his lease, from the south half of lot 1222; and that the cause of action is a continuing one, and first accrued when the water