Fowle v. New Haven & Northampton Co. , 112 Mass. 334 ( 1873 )

Colt, J.

The injury for which the plaintiff seeks to recover damages is caused by the erection of a permanent embankment along the margin of Mill River, by which the current of that stream is at times thrown upon his land. The embankment was constructed by the defendant corporation under its chartered powers for the support of tracks which were originally built upon piles.

The defendant relies upon the record of a former judgment between these parties as a bar to this action. The judgment was upon a declaration precisely similar in its allegations to those here made, except that a less quantity of soil is stated to have been washed away. In each declaration, the amount of land carried away is stated, followed by a charge that the residue of the plaintiff’s land has, by the changes produced in the current of the stream, been greatly lessened in value. The record in the first action showed that the plaintiff was not limited to the recovery of damages which had actually accrued before the date of the writ, but took judgment for an amount, only the smallest portion of which was for such damages.

It was decided upon exceptions taken at the first trial of tne present case, that the plaintiff might recover entire damages in one action for an injury occasioned by a permanent structure of this description, and was not limited to those which had been actually suffered at the date of the writ; and therefore that the judgment in the first action was a bar to a new action for subsequent injuries from the same cause. 107 Mass. 352. A new trial was ordered, and the case comes up again on a report from the Superior Court. The only question is whether the evidence offered at the last trial ought to take the case out of the rule above stated.

The fact that since the verdict in the former action an additional portion of the plaintiff’s land has been washed away by a freshet which occurred in 1869 is the only new fact offered which might not have been properly put in evidence to increase the damages in the original suit. The permanent character of the structure, and the fact that the plaintiff accepted damages which were assessed for the permanent injury and necessarily involved a consideration of the probable future effect upon the plaintiff’s land of the changed current of such a stream in its different stages of water, remain unaffected by the evidence. The jury may have intended to compensate the plaintiff .for the injury now complained of or to give him the means to protect himself against it. As a general rule, a new action cannot be brought unless there be a new unlawful act and fresh damage. There is no exception to this rule in the cases of nuisance, where damages after action brought are held not to be recoverable because every continuance of a nuisance is a new injury, and not merely a new 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. This is the course which appears to have been taken in this case, and to allow a recovery here might subject the defendant to double damages. Warner v. Bacon, 8 Gray, 397. Wheeler v. Worcester, 10 Allen, 591, 603. Troy v. Cheshire Railroad Co. 3 Foster, 83. Judgment for the defendant.