
    *Plate v. New York Central Railroad Co.
    
      Former recovery.—Estoppel by judgment.
    
    
      A former recovery of damages for a nuisance affecting the plaintiff’s land, conclusively establishes his right to recover subsequently accruing damages, for a continuance of it.
    
    Appeal from the general term of the Supreme Court, where a judgment entered in favor of the plaintiff, upon the report of a referee, had been affirmed.
    This was an action by Harry Plate against the New York Central Railroad Company, to recover damages for injuries caused by keeping and maintaining the defendant’s railroad track, and ditches along the side thereof, in such manner as to cause the water to flow back upon the plaintiff’s land.
    George M. Barnes, being then owner of a farm, on the 27th August 1852, conveyed to the Buffalo and Lock-port Eailroad Company, a strip of land, four rods wide, through the same, on which the railroad was constructed. The defendant, by the consolidation of several railroad companies, under the act of 1854, succeeded to all the rights of the Buffalo and Lockport Eailroad Company to said strip of land, and to its railroad. On the 3d August 1853, Barnes conveyed the said farm, consisting of about 120 acres, to the plaintiff, subject to the right of way of the Buffalo and Lockport Eailroad Company, as the same was then used and occupied by the- company.
    The plaintiff claimed, in this action, to recover damages for the flooding of his land since the 11th October 1855; and proved, at the trial, that, by the construction and maintenance of the defendant’s railroad, large quantities of water, in time of flood, were brought down the railroad ditches, from land lying northerly from the *plaintiff’s land, which, before the construction of the road, found an outlet into a creek, in another direction, without passing over the said land; and that, several times in each year, by reason of the insufficiency of the ditches along the northwesterly side of the railroad, when there were heavy rains and floods, the water accumulated along the side of the railroad and extended over the land, causing the injuries 'for which he claimed redress in this action.
    On the 11th October 1855, the plaintiff brought an action against the defendant, to recover damages for injury to the same land and crops, from the same cause, and recovered a final judgment therein. The referee found, that the flooding of the plaintiff’s land, since the 11th October 1855, was caused in the same manner as previous to that time, upon which the former judgment was rendered, and that the same embankment and ditches remained, in the same condition, from the 11th October 1855, to the time of the commencement of this action, in which they were during the time the injuries occurred for which the former action was brought; that the same quantity of plaintiff’s land, and by the same cause, had been flooded, since the commencement of the former action, as had been flooded prior thereto; that the land thus overflowed had been rendered thereby less valuable, and that the crops had been more or less injured, in each year, by the same cause, since the commencement of the former action. The referee also found, that the plaintiff had sustained injuries, from these same causes, from the 11th October 1855, to the commencement of this action, to the amount of $400
    As a matter of law, the referee found, that the former recovery for injuries sustained by the plaintiff, from the same cause, established the right of the plaintiff to recover any damages subsequently sustained from the same cause; and that the defendant, by keeping up and maintaining the embankment and ditches, and thereby diverting the water to the plaintiff’s land, was liable to the plaintiff for these damages. And he directed judgment accordingly; which having been affirmed at general term, the defendants appealed to this court.
    Laning, for the appellants.
    
      Lamont, for the respondent.
    
      
       Smith v. Elliott, 9 Penn. St. 346.
    
   *Clerke, J.

(after stating the case.)—It seems ' ° ' to be conceded in the argument before tbogeneral term, that the only question deserving of serious consideration in this case, is that relating to the effect of the recovery in a former action. The plaintiff’s counsel contended, that the former judgment was con-elusive as to the liability of the defendant for the cause of the injury. The same embankment and the same ditches which, by the former judgment, it was adjudged, caused similar injuries to the plaintiff, caused injuries, subsequently, to him, and that judgment concluded the defendant from denying such liability in this action. This proposition, I think, can scarcely be now disputed.

The case of Mersereau v. Pearsall (19 N. Y. 108), referred to by the judge who delivered the opinion at t'he general term, fully sustains this proposition. There, an action was brought to recover damages, caused by the erection of a dam, and throwing back water upon the wheel of the plaintiff’s saw-mill. In a previous action, the plaintiff had recovered judgment against the same defendant, in which it was found, as a matter of fact, that the same dam had set the water back upon the plaintiff’s saw-mill wheels (which continued without change), causing injury to the plaintiff. The court, without hesitation, held the judgment to be an estoppel against the defendant, as to his liability for the injury. Of course, the extent of the injury, and the amount of the damages, .are .left for ascertainment by new proof, in the last action. 'And so it was in the case before us; the amount of the injury was proved before the referee, and was accordingly found by him.

The counsel for the defendant refers to a case in 24 N. Y. 658, for the purpose of maintaining that the former recovery is a bar to all future actions for injuries caused by the same embankment and ditches; alleging that, according to the opinion delivered in that case, the plaintiff could have recovered prospective damages ; and, consequently, the defendants could not be vexed in a second action. If, indeed, he could have recovered damages, not only for all injuries, which had occurred previous to the commencement of the action, but also for all injuries which may possibly ^thereafter accrue, the first recovery would be a bar to the second. There are cases, undoubtedly, in which the plaintiff is at liberty to prove these direct and immediate consequences of the act complained of, occurring after the commencement of the action, which are so closely connected with the wrong, that they would not, of themselves, furnish a distinct cause of action. In the old case, where the plaintiff declared in battery that he had previously commenced an action for it against the defendant, and recovered IK., and no more, and that afterwards part of his skull, by reason of the battery, came out of his head, and for this subsequent damage the action was brought, the defendant pleaded the former recovery in bar, and on demurrer, the plea was sustained. (Fetter v. Beale, 1 Lord Raym. 339; s. c., 1 Salk. 11.)

In Caldwell v. Murphy (1 Duer 233, affirmed, 11 N. Y. 416), it was held, that for an injury to the person, resulting from a single act, a single action only can be brought, and, therefore, on the trial the nature and extent of the injury, in all its consequences, should be considered, with its future duration and future effects. In Blunt v. McCormick (3 Denio 283), which was an action brought by a tenant for one year, against his landlord, for obstructing his light, the court remarked: “ Suppose, the lease to have contained a covenant not to obstruct his light, the covenant being a single cause of action, one recovery on it would be an absolute bar to any future action.” In a word, loss accruing subsequent to the commencement of the action, may be recovered, where the subsequent damages were the mere incident or accessory of the principal thing demanded; but, in Kentucky, where that rule had been frequently recognised, it was held, in the court of appeals of that state, in an action for diverting the water of a stream, that the plaintiff could recover only for the damages sustained previous to the commencement of the action. (Langford v. Owsley, 2 Bibb 215.)

In Mahon v. New York Central Railroad Co. (24 N. Y. 658), to which I have already referred, it appears in that report, that the judge (myself) who delivered the opinion of the court in that case, said, that if the defend-an^S n°^ ^ranscen<^ ^le authority vested in them by the legislature, and yet, in constructing their road, had necessarily injured the rights of others, they were, equally liable to respond for prospective as well as accrued damages. I am inclined to think, that there is some clerical or typographical mistake here; or, perhaps, there was some inadvertence of my own, in the haste of writing. It was probably intended, in that opinion, merely to convey the idea, if the action was sustainable merely on the ground that the plaintiff was deprived permanently by the defendants of the use of the highway, called the Mohawk turnpike, or that the obstructions were necessarily permanent, that he would be entitled to prospective damages for that deprivation. But, at all events, the decision was made independently of the hypothesis suggested in the beginning of the opinion. At most, it can be considered nothing more than a dictum, and, therefore, cannot control the present case. Here, the obstructions are not necessarily permanent, and, clearly, the plaintiff could not have recovered for prospective damages. It would have been impossible to conjecture, much more to prove, the extent or amount of such damages. The cause of the injury may thereafter be abated or removed, so that the plaintiff might never again sustain any injury; or, from some fortunate change of circumstances, the plaintiff’s land might never again be flooded. I am in favor of affirming the judgment, with costs.

Judgment affirmed.  