Markt v. Davis , 46 Mo. App. 272 ( 1891 )

Ellison, J.

This is an action for a nuisance which consisted in erecting a dam across running streams which passed through defendant’s lands, and digging a ditch so that the waters were diverted from their natural course in said streams onto plaintiff’s land. The petition asked damages'for injuries to the crop and to the land. The court’s instruction permitted the jury to assess damages for the permanent injury to the land, and also for the loss of the crop. Permanent injury should not have been submitted to the jury.

It is not worth while to say more of this case than that it is governed by the cases of Pinney v. Berry, 61 Mo. 359; Van Hoozer v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575. In the case last cited it is held that: “In cases of nuisance the rule is well settled, that the plaintiff cannot recover for injuries not sustained when his action is commenced. It is equally well settled, that when the injury inflicted is of a permanent character, and goes to the entire value of the estate, the whole injury is suffered at once, and a recovery should be had therefor in a single suit, and no subsequent action can be maintained for the continuance of said injury. But when the wrong done does not involve the entire destruction of the estate or its beneficial use, but may be apportioned from time to time, separate actions must be brought to recover the damages so sustained.”

The judgment will be reversed, and the cause remanded.

All concur.