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strip of land mentioned and described in the not to exceed 5 cents, between Boise city and agreement, and that it was the purpose and the strip of land described in the agreement. intention of the defendant to subdivide his The court accordingly took the view, and so tract of land into smaller tracts and build instructed the jury, that this $600 became houses thereon for rent and sale, and that due as soon as the company completed its the failure on the part of the plaintiff to line of road "to" the strip or tract of land build and erect its railway on such ground described in the agreement, to be conveyed amounted to a failure of consideration for for a right of way, and the maintenance of the promise to pay the said sum of $600. It a 30-minute service at a 5-cent fare. We are is also alleged that in building its line of satisfied that the court placed the correct road plaintiff had dug and excavated a large construction on this contract. It embodied ditch on the south side of its track, partly on two separate and distinct contracts, and unthe land of defendant, and partly on the der its terms the company might have earned 30-foot right of way above referred to, and the right to collect this sum of money, and that the ditch or excavation had been so yet not be in a position to demand the right made and maintained that the water used by of way. It was clearly entitled to collect the the defendant in irrigating the remainder of sum agreed to be paid upon completion of its his tract of land adjoining the right of way road to the boundary line of defendant's would flow and run off into the ditch, and in premises as described in the agreement and so doing cut deep ditches or gullies on defend- instituting the service as stipulated. Appelant's land, and otherwise damage the lands lant contends that he was entitled to show by of defendant adjoining the said right of way, parol what the "other consideration" was as

, and render a part of defendant's land worth- mentioned in the agreement. That position less, to his damage in the sum of $600. For is correct, and was so recognized by the trial a further and second defense and counter-court, but that does not affect, alter, or modiclaim the defendant set up the contract sued fy the stipulation in the agreement that the upon, and alleged that he had promised and money should be paid "as soon as said first agreed to convey a 30-foot right of way along party, or his assigns, have constructed and the north side of his place for the purpose put into operation an electric railway line of building and constructing plaintiff's line from the city of Boise to the strip of land of railway, but that, instead of using and oc- above described,” etc. This fixes the maturicupying the same and building the road there- ty of the obligation to pay. on, the plaintiff had used and occupied a

The inquiry as to whether the road has portion of defendant's land contiguous to the been built over the lands proposed to be givproposed right of way, and was occupying the en, and in accordance with the contract, will same with its track and right of way to the properly arise at such time as the company damage of defendant in the further sum of demands a conveyance for the right of way. $600. Defendant prays judgment for the sum It is not involved in this action. of $1,200 for the damages sustained by reason

In the progress of the trial the defendant of the acts set out in his answer and counter-asked leave to amend his second alleged counclaims. Judgment was entered in favor of the terclaim so as to set out the contract entered plaintiff for the sum of $580, and defendant into between the parties, and to allege the has appealed.

corporate capacity of the plaintiff and more A great many errors have been assigned, fully plead the fact that the plaintiff corpobut we shall not undertake to treat them ration had taken and occupied and used a separately or in detail, as a consideration of portion of defendant's land not embraced in a part only of the assignments will dispose the right of way which defendant had conof all and settle this appeal.

tracted to convey. The record is not entirely In the first place, it was contended by the clear as to the extent of the proffered amenddefendant that he was not liable to pay the ment, but the position taken is clarified by $600 under this contract until the plaintiff the ruling of the court denying the applicashould complete the construction of its line tion of the defendant to amend. The court of road the full length of this strip of land said: “You have apparently attempted to set agreed to be conveyed by defendant as a right up that they had taken an additional tract of way. The court construed the agreement of land to this 30-foot strip, and the allegaas embodying two separate and distinct con- tion does not support the fact, although your tracts, the first for the conveyance of a right evidence, perhaps one view of it, will show of way as set out and described in the agree that; but I am satisfied, even if that was ment, and the second as a separate and dis- true, that there would not be a good cause of tinct contract to pay the sum of $600 at the action for a counterclaim here, because if

a time and in the manner specified in the agree- they have taken land that did not belong to ment, viz., "as soon as said first parties, or them, why the defendant still owns the land, their assigns, constructed and put into opera- and would own the land. If you recovered tion an electric railway line from the city judgment, it would not settle the question of of Boise to the strip of land above described,” | title here to the property, and I do not beand on the condition that the company should lieve defendant can sell that strip of land in give a street car service at intervals of not that way.

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 damages which he has sustained by reason of the case I don't see any necessity for grant- the permanent taking and appropriation of ing permission to amend because it would be the right of way by the railroad company." necessary for you to amend further, and that 2 Elliott on Railroads, $ 1048, says: "In additional amendment the court will still many of the states a suit at common law may hold is not a subject of counterclaim, the tak- be maintained upon the implied promise to ing of additional land, because you are asking pay a just compensation for the lands taken. for the full value of it, and if the court And for any taking or injury for which the should award it, you would still own the land statute does not provide a remedy the landafter you had the value of it, the title would owner may sue at common law. Some of the still be in your client, or his grantee, who courts hold that, even though the original ever it might be.” It will thus be seen from taking was wrongful, the landowner may afthe ruling of the court that the court took firm the taking and sue for compensation, the view that a person whose land has been and a recovery in such a suit vests the right taken by a railroad company for a right of to the lands in the defendant.” Many cases way without being taken under a conveyance, are cited in the notes to this text sustaining dedication, or in the exercise of the right of the principle as stated. For authorities to eminent domain cannot maintain an action the same effect, see C. B. U. P. R. Co. v. Anagainst the company for the value of the drews, 26 Kan. 702; Wichita & W. R. Co. v. property taken. This necessarily leads to an Fechheimer, 36 Kan. 45, 12 Pac. 362; Evansinquiry as to the rights of a landowner whose ville, etc., R. Co. v. Nye, 113 Ind. 223, 15 N. lands have been seized and entered upon by E. 261; Lawrence v. R. R. Co., 39 La. Ann. a public service corporation without first ob- 427, 2 South. 69, 4 Am. St. Rep. 265; Zimtaining the right to do so either by contract merman v. Kansas City & N. W. R. R. Co., or by pursuing the statute conferring the 144 Fed. 622, 75 C. C. A. 425; Southern Ry. power of eminent domain.

Co. v. Hood, 126 Ala. 312, 28 South. 662, 85 In United States v. Great Falls Mfg. Co., Am. St. Rep. 32; G., H. & S. A. R. Co. v. 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846, Pfeuffer, 56 Tex. 66. the Supreme Court of the United States was It must be remembered that in this case considering a case where the agents of the the company which is alleged to have approgovernment had appropriated private proper- priated appellant's land is a corporation that ty for a public use without any previous con- is granted the right of eminent domain by veyance, dedication, or condemnation, and both the Constitution and statute of this the court in passing on the question said: state. Const. art. 1, § 14; Rev. Codes, $ 5210; “The law will imply a promise to make the Portneuf Irrigating Co. v. Budge, 100 Pac. required compensation, where property, to 1046. Appellant, knowing, therefore, as he which the government asserts no title, is tak- must have, that the respondent company en pursuant to an act of Congress, as private had the right to take his property by proproperty to be applied for public uses. Such ceedings under the power of eminent domain, an implication being consistent with the con- might have concluded to waive the condemstitutional duty of the government, as well as nation proceedings and take the value of the with common justice, the claimant's cause of premises appropriated without any controaction is one that arises out of implied con- versy over the right to take the same.

He tract, within the meaning of the statute which likewise had a right to assume that the comconfers jurisdiction upon the Court of Claims, pany would pay him a reasonable compensaof actions founded upon any contract, express tion therefor. If it failed to do so, he would or implied, with the government of the Unit- be clearly entitled to sue on the implied ed States." In Cohen v. St. L., Ft. S. & W. promise and contract to pay him the reasonR. R. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. able value of the land taken. If the com242, the Supreme Court of Kansas considered pany entered upon appellant's land with his the right of a landowner to waive the reme- consent and acquiescence, and thereafter condies of ejectment, injunction, and trespass, structed its railroad and began operating its and to sue for the value of the land taken, trains, it would then be engaged in a lawful and the rule adopted is stated in the syllabus business of a quasi public character in servas follows: "Where a railroad company has ing the public, and it would then be too late constructed and is operating its railroad for appellant to pursue his remedy against through a piece of land belonging to another, the company by way of ejectment or injuncwithout having obtained a right of way by tion. So. Ry. Co. v. Hood, 126 Ala. 312, 28 any formal condemnation proceedings, and South. 662, 85 Am. St. Rep. 32; Evansville & without having procured any title to the land T. H. R. Co. v. Nye, 113 Ind. 223, 15 N. E. over which it operates its railroad or any 261; 16 Cyc. 768, and cases cited in note. easement therein, the owner of the land may Whether it entered and took possession of waive formal condemnation proceedings and his lands either with or without his consent all formal modes of transfer, and elect to re- or acquiescence, he would still have a right gard the action of the railroad company as to assume, in the absence of an agreement or taking the property under the right of emi. understanding to the contrary, that the comnent domain, and may commence an ordinary pany would pay him the reasonable value of

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the lands taken. If A. steals B.'s horse, B. | two tracts have cultivated and improved may pursue the property in claim and deliv- their respective land up to the said line for ery, or he may waive the tort and sue as up- a period of time longer than five years, then on contract for the reasonable value of the such fact would be better evidence of the loanimal, and A. will not be heard, in a court cation of the line between the two tracts of of justice, to answer and deny the contract land than any survey made since such row and set up as a defense that he stole the ani- of trees was adopted as such line. If, howmal. So, in a case of this kind, if A. should ever, you find from the evidence that the seize and appropriate B.'s real estate for an plaintiff when locating its line found that easement authorized under the Constitution said trees were not the correct dividing line, and statute of the state, B. may maintain his and afterwards constructed its road on the action to oust and eject the trespasser, or true line, and that the defendant before said he may enjoin him from using and occupying road was constructed had an actual survey the land, or he may waive both such remedies made, and found thereby that the line adoptand sue upon an implied contract to pay rea- ed by plaintiff was correct, and thereafter sonable compensation for the property tak- stood by without objection and permitted the en. In the latter event title to the easement plaintiff to construct its works upon such vests in the company appropriating the prop-line, then in that event he should not be pererty when the judgment is paid in the same mitted, after construction of said road, to manner as it does upon condemnation under complain that it was not constructed upon the statute.

the true line." The first part of this instrucWhile the court's statement as to the ap- tion announcing the law as to acquiescence pellant's rights with reference to any addi- in the boundary line established by the cotional land the company had taken for its terminous landowners was as favorable to right of way was erroneous as a matter of appellant as he was entitled to have given law, still it is doubtful if any error was com- to the jury. That instruction is in substanmitted in this respect on account of the de- tial accord with the rule recently announced fective and insufficient manner in which the by this court in Bayhouse v. Urquides, 105 second counterclaim had been pleaded, and Pac, 1066. Appellant assigns error against but very little improvement was offered to the giving of the latter part of the foregoing the pleading by the proposed amendment. It instruction as to his right to recover in the may be said, however, that the defendant in event he had permitted the plaintiff to conthe action was forestalled by the announce struct its road upon his land, or had acment of the court as to his view of the law. quiesced therein. This part of the instrucA complaint in such case, seeking to recover | tion was erroneous. While such conduct on the value of land taken by a public service the part of the appellant would have precorporation where no condemnation has been cluded him from subsequently maintaining had, should be specific as to the description the action of ejectment against the railroad of the premises, and also as to its allegations, company, and likewise have prevented him showing that the pleader is proceeding on the from maintaining injunction against the comtheory that the land has been wholly taken, pany continuing its construction and operaand that he is seeking the entire value there- tion (So. Ry. Co. v. Hood, 126 Ala. 312, 28 of, so that after judgment and payment the South, 662, 85 Am. St. Rep. 32; Evansville & right to the easement may vest in the com- T. H. R. Co. v. Nye, 113 Ind. 223, 15 N. E. pany. Wichita & W. R. Co. v. Fechheimer, 261), still such conduct would not divest him 36 Kan. 45, 12 Pac. 362. Since we have con- of the title to his property, nor would it be cluded that this case must be reversed on inconsistent with the assumption on his part other grounds, we advise that the defendant that the company would pay him for the be allowed to amend his counterclaim, if he land that it was appropriating for its right so desires, in order to bring the same within of way. See cases hereinbefore cited. the rule herein announced.

Appellant assigns the giving of the folAppellant requested an instruction as to lowing instruction as error: "If you believe the effect of a boundary line which existed from the evidence as alleged in the answer between his property and that of the adjoin- that the plaintiff committed injuries to the ing owners, announcing the rule as to the rel- land of the defendant in the building of the ative weight and importance to be given to railway grade mentioned in the pleadings such boundary line and a survey establish- and the evidence, and you further believe ing the true line after the disappearance of from the evidence that since the commission the government monuments. The court de- of such injury the defendant has sold and clined to give the requested instruction, but disposed of his said lands, then the court ininstead thereof gave the following instruc- structs you that the defendant may not retion: “You are instructed that, if you find cover for any injuries to said lands save such from the evidence that the row of trees tes- as may have accrued to the same, as you tified to has been acquiesced in and adopted may believe from the evidence accrued thereby the owners of the tracts of land as the di- to, between the building of such grade or viding line between the land of the defend- embankment and the time of the sale of such ant and the line adjoining on the north for lands." It appeared from the evidence that 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 manifest themselves at a later period. Here among the courts as to the particular actions it is now settled that all subsequent or reof this character in which one recovery only curring damage may be assessed, and can will be allowed, and that for past, present, only be recovered in a suit brought upon the and prospective damages, and the cases in original cause of action.” In Powers v. which a separate recovery will be allowed, Council Bluffs, 45 Iowa, 652, 24 Am. Rep. from time to time, for recurring damages 792, the city cut a ditch along the side of that may be sustained by the party. There the plaintiff's lot, and caused his lands to is a long line of authorities, however, hold- be overflowed, and it was held that the ing that, where the acts of the tort-feasor cause of action was complete when the unhave been completed and consummated and lawful act was committed, and that all of the causes from which the injury must nec- the damages accruing from the original essarily flow are patent and obvious, and the wrong must be included in one action. The injury, if any, is permanent, past, present, latter case was approved in Stodghill v. C., and prospective damages can as readily be B. & Q. R. Co., 53 Iowa, 341, 5 N. W. 495. estimated in advance as after successive dam- The strongest and perhaps most exhaustive ages have occurred, and that the better rule case holding to the contrary rule is that of is to allow only one recovery, and permit it Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. to embrace all damages for past, present, and 98, 4 N. E. 536, 54 Am. Rep. 661. See, also, future injury to the property. Chicago & note to same case in .53 Am. Rep. 123. Eastern R. Co. v. Loeb, 118 Ill. 203, 8 N. E.

The diversity of opinion existing seems 460, 59 Am. Rep. 341, and note; Fowle v.

Fowle v. to have arisen out of the common-law rule New Haven & Northampton Co., 112 Mass. allowing repeated and successive actions 334, 17 Am. Rep. 106.

against a party maintaining a nuisance, but The general rule is well stated by the Su- there is a distinction between cases of nuipreme Court of Massachusetts in Fowle v. sance and those cases where the damage New Haven & Northampton Co. as follows: arises out of the construction or operation “As a general rule, a new action cannot be of a railroad, for the reason that such a brought unless there be a new unlawful act work or improvement constitutes a public and fresh damage. *

The case at nighway, and is authorized and recognized bar is not to be treated strictly in this re- by law, and the right of way itself, and all spect as an action for an abatable nuisance. necessary ground incident thereto, may be More accurately it is an action against the taken in condemnation, so that the road and defendant for the construction of a public the work necessary and incident to its mainwork under its charter in such a manner as tenance' cannot be abated as a nuisance. to cause unnecessary damage by want of The theory on which actions were allowed reasonable care and skill in its construction. to be prosecuted against one maintaining a For such an injury the remedy is at com.non nuisance was that continued and repeated law. And if it results from a cause which actions would overcome the persistency of is either permanent in its character, or the party maintaining the nuisance, and which is treated as permanent by the par- would result in its abatement. No such a ties, it is proper that entire damages should rule can exist in the case of a railroad combe assessed with reference to past and prob- pany, and besides the law looks with disable future injury.” Sutherland, speaking favor on a multiplicity of actions, and rathof the general rule, says: “When a wrong- er favors the settlement and determination ful act is done which produces an injury of all matters that can be settled in one acwhich is not only immediate, but from its tion.

, . The purchaser from appellant took nature must necessarily continue to produce whatever portion of the land he acquired loss independently of any subsequent wrong as it existed after the construction of the ful act, then all the damages resulting, both road, and he could not recover damages for before and after the commencement of the the original wrong. Chicago & E. R. Co. v. suit, may be recovered in one action." 4 Loeb, 118 Ill. 203, 8 N. E. 812, 59 Am. Rep. Suth. Dam. $ 1042. Mr. Freeman states 341, and note; Stodghill v. C., B. & Q. R. the rule as follows: “All the damages which Co., 53 Iowa, 341, 5 N. W. 495. can by any possibility result from a single Appellant assigns as error the action of tort form an indivisible cause of action. the court in giving the following instruction * * * For damages alone no action can with reference to the measure of damages be permitted. Hence, if a recovery has once to be applied in the event the jury found in been had for the unlawful act, no subsequent favor of the cross-plaintiff: “If the jury besuit can be sustained. There must be a lieve from the evidence in this case that fresh act as well as a fresh damage.” Free- the plaintiff in constructing its railway enman on Judgments, $ 241. Mayne on Dam-tered upon and made excavations upon deages, p. 138, says: “Similar questions often fendant's land in the manner charged in the

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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 de

IRR. DIST. fendant's land thereby; and, unless you find (Supreme Court of Idaho. Dec. 14, 1909.) from the evidence that the defendant's lands 1. WATERS AND WATER COURSES (8 244*) have been diminished in value by the mak- IRRIGATION CANALS CONSTRUCTION OF ing of said excavations and the digging of

BRIDGES. said ditch mentioned in the pleadings and Rev. Codes, apply to highways across railroads

Held, that the provisions of section 931, evidence, your verdict on the question of on public lands, and not to highways crossing irdamages will be for the plaintiff.” The most rigation canals and ditches. serious objection to this instruction is the [Ed. Note.-For other cases, see Waters and uncertainty with reference to the character Water Courses, Dec. Dig. $ 214.*] of taking, injury, or damages to which it is 2. WATERS AND WATER COURSES ($ 244*)-IR

RIGATION CANALS-BRIDGES. intended to apply. We assume, however,

Section 2713, Rev. St. 1887, is contained in that the court had in mind the evidence ad- chapter 5, tit. 4, of the Civil Code, and the title duced with reference to the excavations and to said chapter is as follows: "Water and canal ditches dug by the railway company, con- ter, to wit, sections 2710 to 2713, inclusive, were

corporations,” and the four sections of said chapstituting a permanent injury to cross-plain intended to apply to water corporations furnishtiff's land, in which event the rule announc- ing water to cities and towns, and not intended ed by the court was substantially the same to apply to corporations furnishing water for iras has been announced by this court. The rigation purposes. See sections 2838-2841, Rev.

Codes 1909. rule as to the measure of damages was an

[Ed. Note. For other cases, see Waters and nounced by this court in Young v. Exten- | Water Courses, Dec. Dig. § 244.*] sion Ditch Co., 13 Idaho, 174 (182), 89 Pac. 3. WATERS AND WATER COURSES ($ 244*)-IR296, and is as follows: "If land is taken or RIGATION DITCHES-BRIDGES. the value thereof totally destroyed, the own-Codes apply to ditches which are extended across

The provisions of section 951 of the Revised er is entitled to recover the actual cash val- public streets and highways, and not to ditches ue of the land at the time of the taking or that were constructed prior to the location of destruction, with legal interest thereon to such highways. the time of the trial. If the land is perma. Water Courses, Dec. Dig. $ 244.*]

[Ed. Note. For other cases, see Waters and nently injured, but not totally destroyed, the owner will be entitled to recover the 4. WATERS AND WATER COURSES ($ 244*)-IR

RIGATION DITCHES-DUTY TO BRIDGE. 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 prescription or duly located by the county com

missioners, then it is the duty of the owner to titled 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 pre- [Ed. Note.-For other cases, see Waters and ceding the injury, with legal interest there- Water Courses, Dec. Dig. $ 211.*] on to the time of the trial.” We are entire- 5. HIGHWAYS ($ 151*) – OBSTRUCTION NUI

SANCE-IRRIGATION DITCIIES. ly satisfied with this rule, and will not pause

Held, under the provisions of section 3656, to consider, at this time, the reasons for Rev. Codes, that a ditch or canal constructed the rule, or open that question to further and maintained under the express authority of a consideration.

statute cannot be deemed to be a nuisance. A number of other assignments of error Dec. Dig. $ 154.*1

[Ed. Note. For other cases, see Highways, have been argued, but we do not find any 6. PREVENTION OF NUISANCES. further question that is likely to arise on

The cases of Boise City v. Boise City Rapthe retrial of this case that deserves or re- id Transit Co., 6 Idaho, 779, 59 Pac. 716, and quires our consideration here. From what City of Lewiston v. Booth, 3 Idaho (Hasb.) 692,

34 Pac. 809, distinguished. has been said it appears at once that a new

(Syllabus by the Court.) trial must be had in this case. A new trial is rendered particularly necessary by rea- Appeal from District Court, Canyon Counson of the instruction to the effect that the ty; Ed. L. Bryan, Judge. appellant could not recover damages which Action by A. C. MacCammelly, Road Overhad not been actually sustained up to the seer, against the Pioneer Irrigation District. time of his conveyance of the property. Judgment for plaintiff, and defendant ap

Judgment is reversed, and a new trial or- peals. Reversed. dered. Costs awarded in favor of appellant.

Rice, Thompson & Buckner, for appellant.

0. M. Van Duyn, for respondent. Smith & SULLIVAN, C. J., and STEWART, J., con- Scatterday, Hugh E. McElroy, and C. W. cur.

Winstead, amici curiæ.

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