
    TOWN COUNCIL OF TOWN OF HUDSON v. LADD
    
    (No. 1372;
    January 31, 1928;
    263 Pac. 703)
    ■Limitations of Action — When Cause of Action Mat Akise — Damages to Real Property — Measure of Damages — Municipal Corporations — Presentation of Claim Against Municipality— Waiter of Presentation — Action on Case — Obstruction of Irrigation Ditch-Water and Water Courses.
    1. Defense of statute of limitations was waived by failure to raise it by tbe pleadings.
    2. Where obstruction or excavation of water course incident to changing channel of stream is on another's property, and it is not necessarily permanent in character and injury to plaintiff’s property does not appear certain, action accrues at time of subsequent damage, whereas cause of action for permanent excavation or obstruction from which injury naturally follows, extent of which is ascertainable, accrues at time of excavation.
    3. Where injury to real property is of a permanent nature, or cannot be repaired except at great expense, measure of damages is the difference between the value of the property before and after injury, though cost of repair may be measure of damages where damage is temporary, or can be repaired at small expense.
    4. If action of town in changing channel of river caused permanent injury to plaintiff’s land by causing bank and irrigation ditch to cave into river, and by washing bank near his farm buildings, plaintiff was entitled to recover the difference between the value of his property before and after injury, provided water of which he was deprived could not be brought to his land except at great expense.
    5. Under Const, art. 16, § 7, and Comp. St. 1920, § 1760, requiring claims and demands against town to be presented in writing under oath with full account of claims, before claim or demand may be audited, held to require pre-’ senting claim or demand against town before maintaining suit thereon, in view of sections 1416 and 1362, applicable to counties.
    
      6. Where right of action against municipal corporation is one recognized at common law, failure to comply with terms of statute requiring presentation of claim goes to remedy rather than to right itself, whereas compliance with, statute is condition precedent to .bringing of action which statute itself creates.
    7. In action against town for damages resulting from changing channel of river, failure of plaintiff to present written claim or demand to town hoard, as required by Const, art. 16, § 7, and Comp. St. 1920, § 1760, where not raised by demurrer or answer, held waived, since requirement did not constitute condition precedent to commencement of action, but mere restriction on exercise of the remedy whieh was a matter in abatement.
    8. Landowner's action against town for damages resulting from changing channel of river, and thus obstructing irrigation ditch, held action on the case rather than in trespass, where cause of injury occurred on land other than plaintiff's; and allegation of plaintiff’s possession was therefore unnecessary.
    9. Possession by landowner of real property damaged held not necessary prerequisite to recovery of damages resulting from obstruction of irrigation ditch on another’s property, due to changing channel of river, where plaintiff sought only damages resulting from permanent injury; action being in ease rather than in trespass, though forms of action have been abolished, under Comp. St. 1920, § 5555.
    Error to District Court, Fremont County; Bryant S. Cromer, Judge.
    Action by Walter M. Ladd against the Town Council of the Town of Hudson. Judgment for plaintiff, and defendant brings error.
    
      
      E. H. Fourt and Dillon, Ellery & Spencer lor plaintiff in error.
    No canse of action is stated in the petition, under the common law rule but the rule of the civil law has apparently been adopted in this State; Ladd v. Reddle, 12 "Wyo. 362, a case quite similar on the facts, Howell v. Co. (Wyo.) 81 Pae. 785 is also in point. See also McDaniel v. Cummings, (Calif.) 23 Pac. 795; Grey v. McWilliams, 32 Pac. 976. A defendant has the right to protect his land from overflowing waters, Sanguinetti v. Pock, 69 Pac. 98; Waffle v. Ry. Co., 53 N. T. 11; McCormick v. Horan, 81 N. Y. 86. The rule of damnum absque injuria applies, Hughes v. Anderson (Ala.) 44 Am. Rep. 147; Peek v. Harrington, 109 Ill. 611; Clinton v. Myers, 46 N. Y. 511. One may change the course of a stream flowing through his land and return the water unpolluted before it leaves his premises, State v. Barker, (Utah) 108 Pac. 352; Tolle v. Correth, 31 Tex. 362; Ry. Co. v. Carr, 37 Oh. St. 448; Ry. Co. v. Hammer, 22 Kans. 333; Ry. Co. v. Renfro, 34 Pac. 802; Ry. Co. v. Keys, 40 Pac. 275. Municipalities are not liable for injury by surface waters resulting from the lawful exercise of a governmental function, 9 R. C. L. p. 685; Hill v. Boston, 122 Mass. 369; Dillon Munic. Corp. (5th ed.) § 1643. The liability of a municipality hinges upon whether the duties are performed by it as a substitute for the state, or for the benefit of a business corporation, Ramirez v. Cheyenne, (Wyo.) 241 Pac. 710.
    
      M. C. Burk, for defendant in error.
    The action is not barred until ten years from date of injury, 40 Cyc. 584; the damages accrued within four years of the commencement of the suit; Ladd v. Reddle, 12 Wyo. 362, is clearly not in point on the facts. Injury resulting from the diversion of waters of a stream is actionable, 40 Cyc. 607; Maxwell v. Shirts, 61 N. E. 754. The cases cited by plaintiff in error will be found to relate to surface waters. The diversion of the water from the natural channel of tbe river was a wrongful act resulting in injury; tbe injury in this case was shown in evidence and so found by tbe Court; that was sufficient to warrant a judgment for tbe plaintiff, which should be sustained.
    
      E. H. Fourt and Billon, Ellery & Spencer, in reply.
    The action is barred by limitation; Taylor v. Newman, (Nans.) 139 Pac. 369; Cartwright v. Co., 206 Fed. 234; Ry. Co. v. Moseley (8th Cir0 161 Fed. 72; Kelley v. Ry. Co. (Ark.) 123 S. W. 664. The cause of action, if any, accrued upon the completion of the structure, King v. Board, 107 S. W. 1189; Smith v. Co., 107 S. E. 381. The judgment is unsupported by sufficient evidence; the plaintiff misconceived the rule of damages applicable to the case, Ry. Co. v. Dotson (Colo.) 38 Pac. 322; Sutherland Damages (4th ed.) 3749, 3760; Co. v. Kroeger (Idaho) 105 Pac. 1076; Young v. Co. (Idaho) 89 Pac. 296; Peterson v. Ar-land (Wash.) 141 Pac. 63; City v. Rabogliatti (Ariz.) 210 Pac. 685; Cheda v. Bodkin (Calif.) 158 Pac. 1025; Pulaski Co. v. Edwards (Okla.) 217 Pae. 976. The petition fails to allege the presentation of plaintiff’s claim before suit and is fatally defective, § 1760 C. S.; Bank v. Town (Minn.) 69 N. W. 471; County v. City, 36 Calif. 193; City v. Co., 38 Mich. 358; McEwen Co. v. Town, (Okla.) 239 Pac. 219; Wheeler v. Omaha (Neb.) 196 N. W. 894; Farmers Bank v. City (Calif.) 91 Pac. 795. The petition is defective in failing to allege that plaintiff was in possession, or entitled to possession, of the land at the time of the alleged trespass, Kossel v. Rhodes (Pa.) 116 Atl. 56; Allen v. Potter (G-a.) Ill S. E. 549; Whitener v. Ward (Mo.) 242 S. W. 991; Sutherland Damages (4th ed.) p. 3734.
    
      M. C. Burk, for defendant in error, supplemental brief.
    The statute of limitations may be waived by not raising the point at the trial, 17 R. C. L. 240; Alexander v. Wen-sel, 104 Pac. 903. Damages cannot be estimated at the time of the structure, due to the uncertainty of the injury, 17 R. C. L. 789; it is only when the injury begins at the time of the structure, that the statute commences to run, Kelly v. Kansas City etc., 123 S. W. 664. Plaintiff is bound to use all precautions to prevent injury, 1 Sutherland Damages § 88. Failure to present the claim does not go to the jurisdiction o£ the Court, 19 R. C. L. 1040-1042.
    
      
      See Headnotes: (1) 37 O. J. p. 1215 n. 53. (2) 37 C. J. p. 891 n. 18; p. 893 n. 2Ó. (3, 4) 17 O. J. p'. 881 n. 52. (5) 28 Oye. p. 1448 n. 15. (6, 7) 28 Oye. p. 1448 n. 15; p. 1472 n. 94. (8) 1 O. J. p. 996 n. 9; 11 C. J. p. 9 n. 93. (9) 11 C. J. p. 9 n. 6.
    
   Brown, District Judge.

This was an action brought by Walter M. Ladd against the Town Council of the Town of Hudson. The plaintiff below alleged in his petition that the Town Council of the' Town of Hudson had changed the channel of the Little Popo Agie River. That because of this change, during the flood season of 1925, the river cut into its bank along which an irrigation ditch supplying water to his land ran, causing the bank and ditch to cave into the river to his damage; and at another point the river was washing the bank near his farm buildings, and that he had paid out $300 in addition to his own labor filling in rock and brush to stop the wash. The answer is a general denial. The case was tried to the court without a jury and resulted in a judgment of $750 in plaintiff’s favor. The case was brought here on error. For convenience the parties will be named as below. The defendant seeks to have the judgment reversed on four points: 1. That the action is barred by the statute of limitations. 2. That the judgment is not supported by sufficient evidence because no evidence whatsoever was introduced upon which a finding and decree as to the amount of plaintiff’s damages can be predicated. 3. The petition is fatally defective in that it does not allege the presentation of plaintiff’s claim to the town council in writing in compliance with the provisions of Section 1760, Wyo. Comp. Stat. 1920. 4. The petition is fatally defective in that it does not allege therein that plaintiff was in possession of or had the right to immediate possession of the land at the time of the alleged trespass.

Tbe -objection tbat tbe statutes of limitations bad run against tbe action was not raised by demurrer or answer in tbe lower court. Tbe rule is too firmly established to require discussion, tbat unless raised by tbe pleadings tbe question of tbe limitation of tbe action will be waived. If it is not raised at tbe proper time in tbe recognized method it is waived and cannot thereafter be set up as a defense. 37 C. J. 1213.

Tbe work done by tbe Town in changing tbe channel of tbe stream was in 1914, or earlier, and was on land other than tbe property of plaintiff. Tbe damage was not done until 1925. Tbe rule in such eases is that where tbe obstruction or excavation is on tbe property of another and not necessarily permanent in character, and it cannot be ascertained at tbat time whether it will work an injury to tbe property of plaintiff, tbe action accrues at tbe time when tbe damage is done rather than at tbe time of tbe obstruction. Where tbe excavation is permanent in character, and injury naturally follows from such excavation, and tbe extent of tbe injury can be ascertained at that time tbe action accrues at tbe time of tbe excavation. Tbe line of demarcation seems to be in tbe certainty or uncertainty of injury to plaintiff’s property. Pahlka v. C. R. I. & P. Ry. Co., 62 Okl. 223, 161 Pac. 544; C. R. I. & P. Ry. Co. v. Bahr, 78 Okl. 78, 188 Pac. 1058; Kelly v. Pittsburg C. S. St. L. Ry. Co., 28 Ind. App. 457, 63 N. E. 233, 91 Am. St. Rep. 134. It has also been held tbat where tbe cause of the injury is abatable by tbe expenditure of money and labor tbat tbe obstruction is not of a permanent character, and tbe action accrues with tbe injury. Ry. Co. v. Bahr, supra; Pablka v. Ry. Co., supra.

Tbe second point raises tbe question of the measure of damages for a permanent injury to real property. Tbe plaintiff’s property consisted of a tract of-land containing six acres in all, of which only between three and four were irrigated. Plaintiff’s theory at tbe trial was tbat be was entitled to such sum in damages as would repair or reconstruct the ditch supplying water for the irrigation of his land, or in case that it was impossible or impracticable to . repair or reconstruct it, then to such sum as would place water for its irrigation on the land through other means, together with such sum as he Jhad expended in attempting to stop the cutting of the bank. The only evidence of the amount of damages he introduced with reference to the destruction of the irrigating ditch was the .testimony of one witness that the only practicable means of supplying water for that purpose now was by constructing a vitrified clay pipe line eight inches in diameter and 1850 feet long at an expense of $1870.00. This witness on redirect examination stated that water could be brought from the Rogers-Clark ditch onto the land of plaintiff, at an expense of from $75 to $100, exclusive of right of way, and exclusive of the carrying right in the Rogers-Clark ditch. He did. not know whether or not plaintiff could secure either of these rights. Evidence on the part of the defendant showed that with two -hours work by one man water could be brought from the Rogers-Clark ditch into a ditch on plaintiff’s land. Originally plaintiff and defendant used water from the same ditch. Defendant had abandoned its right therein on account of the excessive expense in keeping up the headgate, thereby easting upon plaintiff the entire burden of keeping in repair the head-gate and ditch. The rule of damages, as we understand it, is that where the injury to real property is of a permanent character, or cannot be repaired except at great expense, the measure of damages is the difference between the value of the property before and after the injury. One of plaintiff’s allegations in his petition with reference to damage is, “that the said lands prior to said wrongful acts of the defendant were of a market value of $2000 more than since said damage so inflicted. ’ ’ There was no proof offered to sustain this allegation. The excessive expense of tbe upkeep of plaintiff’s diteb and beadgate, after tbe town abandoned its interest therein, could well bave made its use impracticable. Tbe obtaining of water from other sources for tbe irrigation of this small tract of land may bave been so inexpensive that it would bave no appreciable effect on tbe market value of tbe land. It is true that where tbe damage to real property is of a temporary character, or where it can be repaired at a small expense, tbe cost of tbe repair has often been held to be tbe measure of damages. ¥e think, however, if plaintiff prevails in bis theory that tbe injury was permanent, and that water could not be brought to tbe land except at great expense, tbe general rule as to tbe measure of damages in this class of eases would apply.

‘ ‘ One who destroys a private irrigating ditch is liable for tbe difference in tbe value of tbe land belonging to tbe owner without tbe ditch and with it.” Sutherland on Damages, (4th ed.), Vol. 4, page 3760.

In Boise Valley Construction Company v. Kroeger, 17 Ida. 402, 105 Pac. 1076, 28 L. R. A. (N. S.) 968, with reference to tbe measure of damages in cases of this character tbe court says:

“If tbe land is permanently injured but not totally destroyed, tbe owner will be entitled to recover tbe difference between tbe actual cash value at a time immediately preceding tbe injury and tbe actual cash valúe of tbe land in tbe condition it was immediately after tbe injury, with legal interest thereon to tbe time of trial.” Young v. Extension Ditch Co., 13 Ida. 174, 89 Pac. 296.

In tbe City of Globe v. Rabogliatti, 24 Ariz. 392, 210 Pac. 685, we find tbe following language:

“A different rule is applied where tbe injury is of such a character as to be irremediable except at great cost, or where tbe property cannot be restored to its former condition. Tbe damage in such cases is beld to be the depreciation in the market value of the property by reason of the injury, being the difference in such value immediately before and immediately after the sustaining thereof.”

In Faust v. Pope, 132 Mo. App. 287, 111 S. W. 878, in discussing the rule of damages in eases of permanent injury to real property the court says:

“It is true that there is but one rule by which his damages are to be measured, viz: the difference between the market value of his property immediately before and its market value immediately after the injury. This rule is comprehensive enough to include damages inflicted by the blasting as well as those caused by the injury to the easement, and is the only rule the instructions should have given the jury.”

Pedelty, et al. v. Wisconsin Zinc Co., 148 Wis. 245, 134 N. W. 356.

In the absence of any evidence to show the difference in value of plaintiff’s land before and after the injury we hold that the judgment for $750 is not sustained by the evidence.

The third point urged by plaintiff in error is that the presentation of a written claim or demand to the town board is a condition precedent to the bringing of an action. Plaintiff’s petition does not allege the presentation of a written itemized claim to the town board, and the record contains no evidence of such a claim having been presented to the town board for action thereon.

Section 7, Article 16, of our State Constitution provides:

“* # * and no bills, claims, accounts or demands against the state, or any county or political sub-division shall be audited, allowed or paid until a full itemized statement in writing, verified by affidavit shall be filed with the officer or officers whose duty it may be to audit the same.”

Section 1760, Compiled Statutes 1920, provides in part:

“All claims and demands against any town organized under tbe provisions of tbis Chapter shall be presented to the town council in writing with a full account of the items, and verified by the oath of the claimant or his agents, showing that the same is correct, reasonable and just, and no claim or demand shall be audited or allowed unless presented and verified as provided in this section.

We have the same provisions with reference to presentment of claims against a county, Sec. 1416, C. S. 1920, and the additional provision that claims and demands shall be so presented before any action in any court shall be maintainable thereon. Sec. 1362, C. S. 1920. The question of the necessity of presenting a claim or demand against a county before suit can be maintained has been before this court several times. Houtz v. Commissioners, 11 Wyo. 167, 70 Pac. 840; Commissioners v. Denebrink, 15 Wyo. 351, 89 Pac. 7, 9 L. R. A. (N. S.) 1234. In Houtz v. Commissioners, supra, this court said:

“We do not perceive how it is possible to avoid the peremptory language of Section 1216, (now 1362) and to permit an action to be maintained upon a claim coming within its purview without positively disregarding the terms of the statute.” .

This language was quoted with approval in Commissioners v. Denebrink, supra. While the precise question before us here was not before the court in either of the above eases; and the expressions of the court in those cases more or less dicta, yet we think the question may be considered as settled where a county is concerned. Our next inquiry then is whether or not the same rule applies to towns, since Section 1760 does not expressly provide that no suit shall be maintainable until a verified, claim in writing be presented to the town board. In construing statutes like or similar to ours, the courts of other jurisdictions have not made that distinction. The weight of authority is that public policy requires that the board or council that has the authority to disburse public money should have the opportunity to inspect all claims or demands against the municipality before suit can be maintained. Public money should not be spent in useless litigation. Boards before disbursing this money should have an opportunity to investigate, compromise, and settle doubtful claims. It is therefore quite generally held that statutes like or similar to section 1760 must be complied with before bringing an action, whether the statute in specific terms prohibits the bringing of an action without a compliance therewith or not. McEwen v. Town, 112 Okl. 40, 239 Pac. 219; Wheeler v. City of Omaha, 111 Neb. 494, 196 N. W. 894; Bourgeois v. County Board, 82 N. J. L. 82, 81 Atl. 358.

The objection that an itemized claim or demand was not presented to the defendant board was not raised until in this court. The question then as to whether the prohibition of the constitution and statute effects the cause of action itself or only goes to the remedy, becomes a vital one. There has arisen some confusion in the decided cases because of the failure to properly distinguish between causes of action existing at common law and those that are purely of statutory origin. We think the better reasoning to be that where the right to action was one recognized at common law, the failure to comply with the terms of the statute goes to the remedy rather than to the right itself. In many instances the statute gives a right of action against a municipality that did not exist previously and except for the statute could not be maintained. Any condition in such case imposed by statute went to the right of action and became a condition precedent to the exercise of the right. A good illustration of these causes of action is where a statute gives an injured person the right to maintain an action against a municipality for an injury caused by a defective street or sidewalk and at the same time requires such person to file a claim with such municipality or the proper officer thereof, or to give notice to the municipality or some officer thereof of his intention to hold the municipality liable for the injury. In all such eases a compliance with the statute is a condition precedent to the bringing of the action, and if not complied with no cause of action exists.

This distinction is clearly stated in O’Connor v. City of Fond du Lac, 109 Wis. 253, 85 N. W. 327, 53 L. R. A. 831. The court said:

“So we see that none of the eases cited by counsel support their proposition, while Relyea v. Pulp Co., and Musenheimer v. Kellog are to the effect that charter provisions of the kind under consideration are in the nature of statutes of limitations and governed by the rules applicable thereto. If not complied with the objection must be taken by answer or demurrer or be considered waived. Care must be taken not to confuse such statutes with those imposing a condition of the existence of a right, non-compliance with the latter condition goes to the cause of action, not to the remedy for the redress of the wrong. The distinction between the two classes of rights is so clear that no one need go astray. In the one case the right depends on the statute; in the other the right is independent of statute, but its enforcement is limited and regulated by law. In the former failure to comply with the statute prevents the creation of the right, hence it is not waived by failure to raise the point by demurrer or answer, while in the latter the condition relates to the remedy only and is waived unless insisted upon by answer or demurrer. That was the rule at common law and the Statutes, (Sec. 2654, Rev. Stat. 1898) expressly preserves it. Failure to comply with a statutory condition of the use of the remedy does not go either to the jurisdiction of the court or to the cause of an action. ’ ’

Since our constitution and the statutes putting it in force included all claims and demands whether existing at common law or not, it evidently was tbe intention of the framers thereof to place the restriction upon the exercise of the right and not upon the right itself. A restriction upon the exercise of the remedy is a matter in abatement and must be raised by demurrer or answer, or will be waived.

The fourth proposition urged by defendant is that the action is one in trespass and cannot be maintained by plaintiff since he was not in possession of the property. We think the action is one on the case rather than trespass. In eases of injury to real property caused by flooding or washing of water, where the cause of the injury is placed on land other than plaintiff’s, and the injury is not immediate and direct, but consequential, the action is on the case rather than trespass. 26 R. C. L. 983 and 991; 11 C. J. 9.

Thus were defendant without notice to the lower riparian owners discharges large quantities of water from his mill dam, causing injury to the lower riparian owners the action is on the case and not trespass, since the injury is consequential and not direct. Ross v. Horsey, 3 Harr. (Del.) 60; Hogwood v. Edwards, 61 N. C. 350; Wabash etc. Canal v. Spears, 16 Ind. 441; 79 Am. Dec. 444. Under our statute the forms of action formerly existing have been abolished. Sec. 5555, C. S. 1920; Pomeroy, Code Rem. (3d ed.) Sec. 232. Plaintiff is seeking in this action only such damage as result from a permanent injury to real property. We think therefore possession is not a necessary prerequisite to recovery.

Because of the insufficiency of the evidence to show the amount of plaintiff’s damages, the judgment must be reversed, and the case remanded for a new trial.

Reversed and Remanded.

Kimball, J., and Tidball, District Judge, concur.  