not to exceed 5 cents, between Boise city and the strip of land described in the agreement. The court accordingly took the view, and so instructed the jury, that this $600 became due as soon as the company completed its line of road "to" the strip or tract of land described in the agreement, to be conveyed for a right of way, and the maintenance of a 30-minute service at a 5-cent fare. We are satisfied that the court placed the correct construction on this contract. It embodied two separate and distinct contracts, and under its terms the company might have earned the right to collect this sum of money, and yet not be in a position to demand the right of way. It was clearly entitled to collect the sum agreed to be paid upon completion of its road to the boundary line of defendant's premises as described in the agreement and instituting the service as stipulated. Appellant contends that he was entitled to show by parol what the "other consideration" was as mentioned in the agreement. That position is correct, and was so recognized by the trial court, but that does not affect, alter, or modify the stipulation in the agreement that the money should be paid "as soon as said first party, or his assigns, have constructed and put into operation an electric railway line from the city of Boise to the strip of land above described," etc. This fixes the maturiof the obligation to pay.

strip of land mentioned and described in the
agreement, and that it was the purpose and
intention of the defendant to subdivide his
tract of land into smaller tracts and build
houses thereon for rent and sale, and that
the failure on the part of the plaintiff to
build and erect its railway on such ground
amounted to a failure of consideration for
the promise to pay the said sum of $600. It
is also alleged that in building its line of
road plaintiff had dug and excavated a large
ditch on the south side of its track, partly on
the land of defendant, and partly on the
30-foot right of way above referred to, and
that the ditch or excavation had been so
made and maintained that the water used by
the defendant in irrigating the remainder of
his tract of land adjoining the right of way
would flow and run off into the ditch, and in
so doing cut deep ditches or gullies on defend-
ant's land, and otherwise damage the lands
of defendant adjoining the said right of way,
and render a part of defendant's land worth-
less, to his damage in the sum of $600. For
a further and second defense and counter-
claim the defendant set up the contract sued
upon, and alleged that he had promised and
agreed to convey a 30-foot right of way along
the north side of his place for the purpose
of building and constructing plaintiff's line
of railway, but that, instead of using and oc-
cupying the same and building the road there-ty
on, the plaintiff had used and occupied a
portion of defendant's land contiguous to the
proposed right of way, and was occupying the
same with its track and right of way to the
damage of defendant in the further sum of
$600. Defendant prays judgment for the sum
of $1,200 for the damages sustained by reason
of the acts set out in his answer and counter-
claims. Judgment was entered in favor of the
plaintiff for the sum of $580, and defendant
has appealed.

A great many errors have been assigned, but we shall not undertake to treat them separately or in detail, as a consideration of a part only of the assignments will dispose of all and settle this appeal.

In the first place, it was contended by the defendant that he was not liable to pay the $600 under this contract until the plaintiff should complete the construction of its line of road the full length of this strip of land agreed to be conveyed by defendant as a right of way. The court construed the agreement as embodying two separate and distinct contracts, the first for the conveyance of a right of way as set out and described in the agreement, and the second as a separate and distinct contract to pay the sum of $600 at the time and in the manner specified in the agreement, viz., “as soon as said first parties, or their assigns, constructed and put into operation an electric railway line from the city of Boise to the strip of land above described," and on the condition that the company should give a street car service at intervals of not

The inquiry as to whether the road has been built over the lands proposed to be given, and in accordance with the contract, will properly arise at such time as the company demands a conveyance for the right of way. It is not involved in this action.

In the progress of the trial the defendant asked leave to amend his second alleged counterclaim so as to set out the contract entered into between the parties, and to allege the corporate capacity of the plaintiff and more fully plead the fact that the plaintiff corporation had taken and occupied and used a portion of defendant's land not embraced in the right of way which defendant had contracted to convey. The record is not entirely clear as to the extent of the proffered amendment, but the position taken is clarified by the ruling of the court denying the application of the defendant to amend. The court said: "You have apparently attempted to set up that they had taken an additional tract of land to this 30-foot strip, and the allegation does not support the fact, although your evidence, perhaps one view of it, will show that; but I am satisfied, even if that was true, that there would not be a good cause of action for a counterclaim here, because if they have taken land that did not belong to them, why the defendant still owns the land, and would own the land. If you recovered judgment, it would not settle the question of title here to the property, and I do not believe defendant can sell that strip of land in that way. If they have taken land he has

to them, the defendant's action would proba- | action to recover compensation for all the bly be by ejectment, and with that view of the case I don't see any necessity for granting permission to amend because it would be necessary for you to amend further, and that additional amendment the court will still hold is not a subject of counterclaim, the taking of additional land, because you are asking for the full value of it, and if the court should award it, you would still own the land after you had the value of it, the title would still be in your client, or his grantee, whoever it might be." It will thus be seen from the ruling of the court that the court took the view that a person whose land has been taken by a railroad company for a right of way without being taken under a conveyance, dedication, or in the exercise of the right of eminent domain cannot maintain an action against the company for the value of the property taken. This necessarily leads to an inquiry as to the rights of a landowner whose lands have been seized and entered upon by a public service corporation without first obtaining the right to do so either by contract or by pursuing the statute conferring the power of eminent domain.

In United States v. Great Falls Mfg. Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846, the Supreme Court of the United States was considering a case where the agents of the government had appropriated private property for a public use without any previous conveyance, dedication, or condemnation, and the court in passing on the question said: "The law will imply a promise to make the required compensation, where property, to which the government asserts no title, is taken pursuant to an act of Congress, as private property to be applied for public uses. Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the claimant's cause of action is one that arises out of implied contract, within the meaning of the statute which confers jurisdiction upon the Court of Claims, of actions founded upon any contract, express or implied, with the government of the United States." In Cohen v. St. L., Ft. S. & W. R. R. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242, the Supreme Court of Kansas considered the right of a landowner to waive the remedies of ejectment, injunction, and trespass, and to sue for the value of the land taken, and the rule adopted is stated in the syllabus as follows: "Where a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having obtained a right of way by any formal condemnation proceedings, and without having procured any title to the land over which it operates its railroad or any easement therein, the owner of the land may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and may commence an ordinary

damages which he has sustained by reason of the permanent taking and appropriation of the right of way by the railroad company." 2 Elliott on Railroads, § 1048, says: "In many of the states a suit at common law may be maintained upon the implied promise to pay a just compensation for the lands taken. And for any taking or injury for which the statute does not provide a remedy the landowner may sue at common law. Some of the courts hold that, even though the original taking was wrongful, the landowner may affirm the taking and sue for compensation, and a recovery in such a suit vests the right to the lands in the defendant." Many cases are cited in the notes to this text sustaining the principle as stated. For authorities to the same effect, see C. B. U. P. R. Co. v. Andrews, 26 Kan. 702; Wichita & W. R. Co. v. Fechheimer, 36 Kan. 45, 12 Pac. 362; Evansville, etc., R. Co. v. Nye, 113 Ind. 223, 15 N. E. 261; Lawrence v. R. R. Co., 39 La. Ann. 427, 2 South. 69, 4 Am. St. Rep. 265; Zimmerman v. Kansas City & N. W. R. R. Co., 144 Fed. 622, 75 C. C. A. 425; Southern Ry. Co. v. Hood, 126 Ala. 312, 28 South. 662, 85 Am. St. Rep. 32; G., H. & S. A. R. Co. v. Pfeuffer, 56 Tex. 66.

It must be remembered that in this case the company which is alleged to have appropriated appellant's land is a corporation that is granted the right of eminent domain by both the Constitution and statute of this state. Const. art. 1, § 14; Rev. Codes, § 5210; Portneuf Irrigating Co. v. Budge, 100 Pac. 1046. Appellant, knowing, therefore, as he must have, that the respondent company had the right to take his property by proceedings under the power of eminent domain, might have concluded to waive the condemnation proceedings and take the value of the premises appropriated without any controversy over the right to take the same. He likewise had a right to assume that the company would pay him a reasonable compensation therefor. If it failed to do so, he would be clearly entitled to sue on the implied promise and contract to pay him the reasonable value of the land taken. If the company entered upon appellant's land with his consent and acquiescence, and thereafter constructed its railroad and began operating its trains, it would then be engaged in a lawful business of a quasi public character in serving the public, and it would then be too late for appellant to pursue his remedy against the company by way of ejectment or injunction. So. Ry. Co. v. Hood, 126 Ala. 312, 28 South. 662, 85 Am. St. Rep. 32; Evansville & T. H. R. Co. v. Nye, 113 Ind. 223, 15 N. E. 261; 16 Cyc. 768, and cases cited in note. Whether it entered and took possession of his lands either with or without his consent or acquiescence, he would still have a right to assume, in the absence of an agreement or understanding to the contrary, that the company would pay him the reasonable value of

the lands taken. If A. steals B.'s horse, B. | two tracts have cultivated and improved may pursue the property in claim and delivery, or he may waive the tort and sue as upon contract for the reasonable value of the animal, and A. will not be heard, in a court of justice, to answer and deny the contract and set up as a defense that he stole the animal. So, in a case of this kind, if A. should seize and appropriate B.'s real estate for an easement authorized under the Constitution and statute of the state, B. may maintain his action to oust and eject the trespasser, or he may enjoin him from using and occupying the land, or he may waive both such remedies and sue upon an implied contract to pay reasonable compensation for the property taken. In the latter event title to the easement vests in the company appropriating the property when the judgment is paid in the same manner as it does upon condemnation under the statute.

manifest themselves at a later period. Here it is now settled that all subsequent or recurring damage may be assessed, and can only be recovered in a suit brought upon the original cause of action." In Powers v. Council Bluffs, 45 Iowa, 652, 24 Am. Rep. 792, the city cut a ditch along the side of

the title some time prior to the commence- | mining, building, or the like, affects the ment of this action, and that evidence is plaintiff's land or house in such a manner clearly what called forth this instruction. as to produce injurious consequences, which There seems to be a diversity of opinion among the courts as to the particular actions of this character in which one recovery only will be allowed, and that for past, present, and prospective damages, and the cases in which a separate recovery will be allowed, from time to time, for recurring damages that may be sustained by the party. There the plaintiff's lot, and caused his lands to is a long line of authorities, however, holding that, where the acts of the tort-feasor have been completed and consummated and the causes from which the injury must necessarily flow are patent and obvious, and the injury, if any, is permanent, past, present, and prospective damages can as readily be estimated in advance as after successive damages have occurred, and that the better rule is to allow only one recovery, and permit it to embrace all damages for past, present, and future injury to the property. Chicago & Eastern R. Co. v. Loeb, 118 Ill. 203, 8 N. E. 460, 59 Am. Rep. 341, and note; Fowle v. New Haven & Northampton Co., 112 Mass. 334, 17 Am. Rep. 106.

The general rule is well stated by the Supreme Court of Massachusetts in Fowle v. New Haven & Northampton Co. as follows: "As a general rule, a new action cannot be brought unless there be a new unlawful act and fresh damage. The case at bar is not to be treated strictly in this respect as an action for an abatable nuisance. More accurately it is an action against the defendant for the construction of a public work under its charter in such a manner as to cause unnecessary damage by want of reasonable care and skill in its construction. For such an injury the remedy is at common law. And if it results from a cause which is either permanent in its character, or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury." Sutherland, speaking of the general rule, says: "When a wrongful act is done which produces an injury which is not only immediate, but from its nature must necessarily continue to produce loss independently of any subsequent wrongful act, then all the damages resulting, both before and after the commencement of the suit, may be recovered in one action." 4 Suth. Dam. § 1042. Mr. Freeman states the rule as follows: "All the damages which can by any possibility result from a single tort form an indivisible cause of action. For damages alone no action can be permitted. Hence, if a recovery has once been had for the unlawful act, no subsequent suit can be sustained. There must be a fresh act as well as a fresh damage." Freeman on Judgments, § 241. Mayne on Damages, p. 138, says: "Similar questions often

**

be overflowed, and it was held that the cause of action was complete when the unlawful act was committed, and that all of the damages accruing from the original wrong must be included in one action. The latter case was approved in Stodghill v. C., B. & Q. R. Co., 53 Iowa, 341, 5 N. W. 495. The strongest and perhaps most exhaustive case holding to the contrary rule is that of Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661. See, also, note to same case in 53 Am. Rep. 123.

The diversity of opinion existing seems to have arisen out of the common-law rule allowing repeated and successive actions against a party maintaining a nuisance, but there is a distinction between cases of nuisance and those cases where the damage arises out of the construction or operation of a railroad, for the reason that such a work or improvement constitutes a public highway, and is authorized and recognized by law, and the right of way itself, and all necessary ground incident thereto, may be taken in condemnation, so that the road and the work necessary and incident to its maintenance cannot be abated as a nuisance. The theory on which actions were allowed to be prosecuted against one maintaining a nuisance was that continued and repeated actions would overcome the persistency of the party maintaining the nuisance, and would result in its abatement. No such a rule can exist in the case of a railroad company, and besides the law looks with disfavor on a multiplicity of actions, and rather favors the settlement and determination of all matters that can be settled in one action. The purchaser from appellant took whatever portion of the land he acquired as it existed after the construction of the road, and he could not recover damages for the original wrong. Chicago & E. R. Co. v. Loeb, 118 Ill. 203, 8 N. E. 812, 59 Am. Rep. 341, and note; Stodghill v. C., B. & Q. R. Co., 53 Iowa, 341, 5 N. W. 495.

Appellant assigns as error the action of the court in giving the following instruction with reference to the measure of damages to be applied in the event the jury found in favor of the cross-plaintiff: "If the jury believe from the evidence in this case that the plaintiff in constructing its railway entered upon and made excavations upon defendant's land in the manner charged in the

IRR. DIST.

(Supreme Court of Idaho. Dec. 14, 1909.) 1. WATERS AND WATER COURSES (§ 244*) IRRIGATION CANALS CONSTRUCTION BRIDGES.

-

OF

Rev. Codes, apply to highways across railroads Held, that the provisions of section 931, on public lands, and not to highways crossing irrigation canals and ditches.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 244.*] 2. WATERS AND WATER COURSES (§ 244*)-IRRIGATION CANALS-BRIDGES.

Section 2713, Rev. St. 1887, is contained in chapter 5, tit. 4, of the Civil Code, and the title to said chapter is as follows: "Water and canal corporations," and the four sections of said chapter, to wit, sections 2710 to 2713, inclusive, were intended to apply to water corporations furnishing water to cities and towns, and not intended to apply to corporations furnishing water for irrigation purposes. See sections 2838-2841, Rev. Codes 1909.

[Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 244.*] 3. WATERS AND WATER COURSES (§ 244*)—IRRIGATION DITCHES-BRIDGES.

ure of damages, if you find from the evidence that the defendant has been damaged, MacCAMMELLY, Road Overseer, v. PIONEER would be the diminution of the value of defendant's land thereby; and, unless you find from the evidence that the defendant's lands have been diminished in value by the making of said excavations and the digging of said ditch mentioned in the pleadings and evidence, your verdict on the question of damages will be for the plaintiff." The most serious objection to this instruction is the uncertainty with reference to the character of taking, injury, or damages to which it is intended to apply. We assume, however, that the court had in mind the evidence adduced with reference to the excavations and ditches dug by the railway company, constituting a permanent injury to cross-plaintiff's land, in which event the rule announced by the court was substantially the same as has been announced by this court. The rule as to the measure of damages was announced by this court in Young v. Extension Ditch Co., 13 Idaho, 174 (182), 89 Pac. 296, and is as follows: "If land is taken or the value thereof totally destroyed, the owner is entitled to recover the actual cash value of the land at the time of the taking or destruction, with legal interest thereon to the time of the trial. If the land is permanently injured, but not totally destroyed, the owner will be entitled to recover the difference between the actual cash value at Under the provisions of section 3310, Rev. a time immediately preceding the injury Codes, it is the duty of the county to construct and the actual cash value of the land in the bridges that are required to complete all roads condition it was immediately after the in- construction of such ditches or canals; but, intersecting ditches or canals laid out after the jury, with legal interest thereon to the time when ditches or canals are constructed across of the trial. If the land is temporarily, but an existing road or highway, one established by not permanently, injured, the owner is en-missioners, then it is the duty of the owner to prescription or duly located by the county comtitled to recover the amount necessary to re- construct a proper bridge across such ditch or pair the injury and put the land in the con- canal. dition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial." We are entirely satisfied with this rule, and will not pause to consider, at this time, the reasons for the rule, or open that question to further consideration.

A number of other assignments of error have been argued, but we do not find any further question that is likely to arise on the retrial of this case that deserves or requires our consideration here. From what has been said it appears at once that a new trial must be had in this case. A new trial is rendered particularly necessary by reason of the instruction to the effect that the appellant could not recover damages which had not been actually sustained up to the time of his conveyance of the property. Judgment is reversed, and a new trial ordered. Costs awarded in favor of appellant.

Codes apply to ditches which are extended across
The provisions of section 951 of the Revised
public streets and highways, and not to ditches
that were constructed prior to the location of
such highways.

Water Courses, Dec. Dig. § 244.*]
[Ed. Note.-For other cases, see Waters and

4. WATERS AND WATER COURSES (§ 244*)-IR

RIGATION DITCHES-DUTY TO BRIDGE.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 244.*] 5. HIGHWAYS (§ 154*) – OBSTRUCTION — NUISANCE-IRRIGATION DITCHES.

Held, under the provisions of section 3656, Rev. Codes, that a ditch or canal constructed and maintained under the express authority of a statute cannot be deemed to be a nuisance.

Dec. Dig. § 154.*1
[Ed. Note.-For other cases, see Highways,

6. PREVENTION OF NUISANCES.

The cases of Boise City v. Boise City Rapid Transit Co., 6 Idaho, 779, 59 Pac. 716, and City of Lewiston v. Booth, 3 Idaho (Hasb.) 692, 34 Pac. 809, distinguished.

(Syllabus by the Court.)

Appeal from District Court, Canyon County; Ed. L. Bryan, Judge.

Action by A. C. MacCammelly, Road Overseer, against the Pioneer Irrigation District. Judgment for plaintiff, and defendant appeals. Reversed.

Rice, Thompson & Buckner, for appellant. O. M. Van Duyn, for respondent. Smith & SULLIVAN, C. J., and STEWART, J., con- Scatterday, Hugh E. McElroy, and C. W. Winstead, amici curiæ.

cur.