
    *Southside R. R. Co. v. Daniel.
    March Term, 1871,
    Richmond.
    Jomes, J., absent.
    
    i. Special Replication-Want of Rejoinder — Objection in the Appellate Court. — Xn an action on the case for damages to plaintiff’s land, there is the plea of not guilty, on which issue is joined, and there is a special plea, to which there is a special replication concluding to the country. To this there is no rejoinder, and the record does not say that issue was joined upon it; hut the parties go to trial, and the subjects of the special plea and replication are contested before the jury, which renders a verdict for the plaintiff. No objection having been taken to the want of joinder of issue in the court below, it seems that the objection cannot be taken in the Appellate court.
    2.Same — Same—When Cured by Statute of Jeofails. —In such a case if the subject of the replication is such that the defendant cannot rejoin special matter without a departure from the defence set up in his plea, but must take issue upon the replication, the nonjoinder of issue will be cured by the statute.
    3. Estoppel by Record — Judgment.—Two actions on the case are brought in the same court at the same time, by the same plaintiff against the same defendant. The same act of defendant is charged as the cause of the damage in each case; but the damage in one case is charged to be to the plaintiff’s land, and in the other to the crops grown and growing upon it. The case as to the crops is the first tried, and the evidence is as to the crops, and there is a verdict and judgment for the defendant. This verdict and judgment cannot be set up as an estoppel to the plaintiffs in the other action for damages to the land.
    4. Condemnation Proceedings — Assessment of Dam= ages — Subsequent Injury. — A railroad company has the land of R. condemned for its road, and the commissioners assess the damages, and their report is confirmed, and the company pay the amount of the damages assessed to R. R. sells the land to D. D. may maintain an action against the company for injury to his land done since the purchase, which could not be foreseen and estimated for by the commissioners.
    5. Same — Same—Same.  — In such cases the assessment of damages is only a bar to an action for such injuries as could properly have been included in such assessment. *The commissioners are bound to presume the company will construct its works in a proper manner, and they have no right to award damages upon the supposition that the company will negligently and improperly perform its work. A failure to do so by the company will, therefore, impose a liability to any one who may sustain any loss or injury by reason of such negligence.
    In February, 1857, George W. Daniel instituted an action on the case in the Circuit court of Prince Edward county, against the Southside Railroad Co., for damages done to the plaintiff’s land. In his declaration, he charged, that he was the owner of a tract of land of eight hundred and fifteen acres, bordering upon the Appomattox river; through a portion of which land two water courses flow, known as Big and Bit-tie Buffalo, and uniting in the plaintiff’s flat lands; and Big Buffalo, known as Buffalo river after the junction of the two streams, falls into the Appomattox river, on the lands of the plaintiff; about five hundred acres of which lands are Appomattox and Buffalo low lands. Buffalo river, after it receives Iflttle Buffalo, flows through a narrow pass or flat, about two hundred feet in width, formed by a rock or bluff on the west bank of Buffalo river and the hill lands on the east, leaving', naturally, that space for the escape of the flood waters of Buffalo river; and, in addition to which space, there was a sink or low place in the midst of the plaintiff’s low lands west of Buffalo river, over which pass of about two hundred feet at Buffalo river, and the sink or low place the flood waters of Buffalo were accustomed to flow and escape without obstruction. And he charges that the defendant made an embankment and other structures running on, to and across the Buffalo river, at the said pass of about two hundred feet, without leaving sufficient arches or water ways to allow the waters of the Buffalo river to escape over the said pass and the sink in the midst of the plaintiff’s low lands, as they had been accustomed, ‘^whereby the said sink or low place on the plaintiff’s lands was wholly obstructed, and whereby, in the month of August, in the year 1856, the flood water was accumulated and penned back upon the low lands of the plaintiff, above and south of the said embankments and other structures, until they broke and washed down a portion of said embankment at Buffalo river at the said pass, permanently obstructing the said pass, to the sobbing and rendering permanently unfit for cultivation, a large portion of the plaintiff’s low lands south of said embankment and other structures, of great value, viz: to the value of $9,500, and whereby the lands north of and below said embankments were greatly washed, abraided and injured; to the damage of the plaintiff $10,000.
    At the March term of the court for 1858, the defendant appeared and pleaded “not guilty;” on which issue was joined. The defendant also pleaded specially — That the defendant was a company incorporated by the General Assembly of Virginia, for a work of internal improvement: that before the embankment and other structures mentioned in the declaration were constructed, commissioners, appointed by the County court of Prince Edward, ascertained and reported to the County court, that $1,362 was a just compensation to the tenant of the freehold of the lands in the declaration mentioned, for the portion of the lands proposed to be taken by the defendant for its purposes, and for the damage to the residue of the said lands beyond the peculiar benefits to be derived in respect of such residue, for works to be constructed by the defendant. That the defendant paid the amount of $1,362 to the tenant of the freehold; and that the County court of Prince Edward confirmed the report and ordered it to be recorded; and that afterwards the defendant constructed the said embankment and other structures in *the declaration mentioned; and this the defendant is ready to verify.
    To this second plea the plaintiff replied, that the embankment and other structures were so improperly and negligently constructed by the defendant, that by reason thereof the lands of the plaintiff had been greatly damaged; and that the said damages were not estimated or ascertained by the commissioners in their assessment and report in the plea mentioned, and this he prays may be enquired of by the country.
    There was no issue made up upon the special plea; the entry on the order book, after stating the issue on the plea of not guilty, is: and the defendants filed their special plea in writing, to which the plaintiff filed his replication in writing; and it is ordered that this suit be continued until the next term.
    The cause came on to be tried at the August term, 1859, of the court, when the jury found a verdict for the plaintiff, and assessed his damages at one thousand dollars.
    The record says the jury were sworn to try the issue joined; and the verdict is upon the issues. The defendant thereupon moved the court for a new trial; but the court overruled the motion, and rendered a judgment upon the verdict; and the defendant excepted.
    The judge certifies a great many facts; but upon other important points he certifies that the evidence was so conflicting that he could not certify the fact in relation to them. It appears that at the time damages were assessed by the commissioners, the land was in the possession of the executor of Judith Randolph, and it was shortly afterwards sold to the plaintiff. In the conclusion of the bill of exceptions, he says: ‘ ‘ On many points arising during the protracted trial of this case, a number of witnesses were examined, whose testimony was so conflicting that it is with great difficulty that the court can certify any facts as distinctly *and clearly proved, except such as were contained in papers exhibited.” And “that the jury were sent to view the lands of the plaintiff, and the works of the defendant thereon, and the court cannot tell what effect such view had upon their minds, except so far as the result of said view may appear in the verdict rendered by them.”
    Among the papers introduced in evidence by the defendant, and set out in the bill of exception, is the copy of the record of another suit brought by the same plaintiff against the same defendant. This was an action on the case, brought at the same time in the same court,for injury to the plaintiff’s crops. The declaration sets out the description of the plaintiff’s land, and the obstructions of the defendant, and also the causes of the damage sustained, in the same terms as are employed to set them out in the principal case; and refers to the same flood of August, 1856, as the cause of the damage complained of; but charges that the flood waters became accumulated and penned back upon the lands of the plaintiff above and south of said embankment and other structures, to the utter destruction and loss of the crops of the plaintiff then and there grown and growing upon that part of the plaintiff’s low lands, and on the low lands north of said embankment and other structures, of great value, viz: and then sets out the different kinds of crops, with their value, to the damage of the plaintiff of ten thousand dollars.
    The special pleas and the replication are the same in both cases; and there is ho issue on the replication; but the entry on the order books is the same.
    In August, 1858, the cause was tried, when the jury found that the defendants are not guilty in the manner and form as the plaintiff against the said company hath complained. And thereupon the plaintiff moved the court for a new trial; which motion was overruled; and a judgment rendered for the defendant: And the *plaintiff excepted. The facts certified in the bill of exception, show that the enquiry in this cause was as to the injury to the crops growing on the land, whilst in the principal case they indicate that the enquiry was as to the injury to the land.
    Upon the application of the Southside Railroad Co., a supersedeas to the judgment was awarded.
    J. Alfred Jones, for the appellant.
    The first point made in the petition is sound, viz: that the verdict and judgment in the former action were a bar to the recovery in the present action. Although there was, on some points, conflict of evidence, and the facts in respect thereto are not certified, there was none on the point that the land referred to, and the works complained of, are the same in each action. This is not disputed.
    The issue was the same in each action, and the verdict and judgment in the former, which were for the defendant, were conclusive in the latter.
    The answer made to this, in the argument of the appellee, that the jury might have found the appellee was not damaged by the appellant’s works, because there was evidence tending to show that the freshet, which was so, extraordinary, would have destroyed the crops, even had those works not been erected, is not sufficient.
    It proceeds upon a misconception of the finding of the jury. That finding is not that there were no damages to the crops from those works. The finding is, that “the defendants are not guilty, in manner and form, as the plaintiff against said company hath complained.”
    This verdict settled not merely the question of damages. It went deeper: It settled the question of wrongful act. It was a response to the plea of not guilty, which “operates as a denial of the breach of duty, or wrongful act, alleged to have been committed by the defendant. ’ ’ *Stephens on Pleading, marg. 160, top 158, edi. 1837. If the act done had been wrongful, the verdict must have been guilty. And its being “not guilty” is decisive and conclusive upon the question that there was no wrongful act. And, indeed, if there was a wrongful act, there must have been some damages found.
    “Some damages are always recoverable for violation of a right, although the action be in tort.” 3 Rob. Prac., new edi. 618-621. It was long ago held, that “every injury imports damage in the nature of it, ” by Eord Holt, in Ashby v. White, quoted by Robinson, ubi supra. And though, says that author, “there may have been a want of consistency in the language of the judges” (page 619), “now the doctrine is established in the United States and in England, that actual perceptible damage is not indispensable as the foundation of an action. If there has been the violation of a right, and no other damage is established, the party injured is entitled to a verdict for nominal damages.” Page 620. “The general principle,” said Coleridge, J., “applies, that although no appreciable damage may be sustained in the particular instance bjr the wrongful act, yet, as the repetition of suplí an act might be made the foundation of claiming a right to do the act hereafter, a damage in law has been already sustained, in respect of which an action is maintainable.” Page 621. And in Pennsylvania it was held (in 1828) that the law implies damage from flooding the ground óf another, though it be in the least possible degree, and without actual prejudice; and in such case the plaintiff recovers nominal damages, although special damage was alleged and not proved.” Page 620.
    If, then, the jury were not satisfied that the special damage (to the crops) alleged was caused by the appellant’s works; if they were not satisfied there was any “actual prejudice” therefrom, yet, if the evidence ^showed that the appellee’s ground was flooded in the least possible degree by the wrongful act of the appellants, they were bound to find a verdict of guilty, instead of not guilty, and to give some' damages. Nevertheless, the jury found the defendants not guilty. Their verdict, then, in that case, is an explicit and unequivocal finding that it was not a wrongful act in the appellants to erect and continue the works complained of in this action, and (there having been judgment on it) is conclusive in the present case. Preston v. Harvey, 2 Hen. & Mun. 55; 1 Greenl. Evi. S. 531.
    The declaration, in the former case, not only alleged special damage, but also general damages. Robinson (see 3d vol. Prac., new edi., page 624) says, that after stating the cause of action, “the declaration usually alleges the matter therein set forth to be to the damage of the plaintiff some specified sum. Under this common allegation there may be shown what are termed general damages; that is, damages which necessarily result from the act complained of, for,” &c.
    Such was the form of the declaration' in the first case. It stated, as cause of action, that the. defendants made an embankment and other structures across Buffalo river, without leaving sufficient waterway to allow the flood waters to flow, as they had beeh accustomed, and then alleged damage therefrom. And there was in it not only an allegation of special damage to the crops, but general damage was alleged, to wit: to the specified sum of $10,000.
    Under this, as we have just seen, there might have been shown “what are termed general damages; that is, damages which necessarily result from the act complained ofand as damages necessarily result from unlawfully flooding another’s ground (for “the law implies damage from flooding the ground of another, though it be in the least possible degree, and without actual prejudice”), they would have been shown if it *had been shown that the flooding was unlawful; and, in such case, the plaintiff would have recovered nominal damages, although special damages was alleged and not proved.” 3 Rob. p. 620. Chitty utters the same voice (1 Plead. 440 m.), that “damages are general or special. General damages are such as the law implies, or presumes to have accrued, from the wrong complained of. Special damages are such as really took place, and are not implied by law, and are either superadded to general damages, arising from an act injurious in itself, or,” &c.
    Speaking of this principle, Sedgwick, on the measure of damages, says “in the common case of trespass to lands, the main object usually being to determine the right, this principle becomes very important.” In many of these cases, it might seem, at first sight, that the maxim injuria sine damno applied, and that the law would refuse redress. But, as has been clearly said by the supreme court of Connecticut, in an action for flooding lands, “an act which occasions no other damage than putting at hazard those rights, which, if the act was acquiesced in, would be lost by lapse of time, is a sufficient ground of action,” Pages 47-48, and notes.
    It is submitted, the court should have instructed the jury that the verdict and judgment in the former case were conclusive that, in erecting and continuing the works complained of by the appellees, the appellants did no wrong to them (Preston v. Harvey, 2 Hen. & Mun. 55) ; for “a judgment of a proper court being the sentence or conclusion of the law, upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the consent of the parties, and is not only binding upon them, but upon the courts and juries ever afterwards, so long as it shall remain in force and unreversed. ’ ’ *Marsh v. Pier, 4 Rawle R. 273, 288-9; and see 1 Greenl. pv., $ 531, and notes.
    Whether pleaded or given in evidence, the verdict and judgment were conclusive. It is so in most of the States. 2 Smith’s Head. Cases 820, top, Uibr. edi. 683 m. And notwithstanding the obiter dictum in Cleaton v. Chambliss, 6 Rand. 86, of one of the judges, that is the rule in Virginia. See Shelton v. Barbour, 2 Wash. 64, and opinions of Tucker, Judge, and Roane, Judge, in Preston v. Harvey, 2 Hen. & Mun. 63-4, 67-8.
    Not only are the verdict and judgment in the former case an absolute bar to the suit in this case, but the facts show there is no ground of action. And if substantial grounds were wanting to set aside this verdict, there is a fatal defect in this ; that there was no issue made upon the second plea.
    The replication to it set up new affirmative matter, to wit, that the works were negligently constructed, and the damages not estimated with reference to such negligent construction. But while averring new matter, it concluded to the country. This was error. See 5 Rob. Prac., new edi., 174-5, and cases cited.
    The clerk did not enter the similiter— that clerk (now an octogenarian, the last survivor of the old school of Virginia clerks), understood his business. He had no right to cut off the defendant from pleading, because the plaintiff concluded his replication erroneously, and he knew it. If the replication had concluded with a verification, as it should have done, there could have been no joinder of issue without a rejoinder; 1 Rob. Old Prac. 218; and the improper concluáion does not result in an issue, when a proper conclusion would not. Issue, therefore, was not joined on this replication. And this error is not cured by the provision of the Code, ch. 181, 3. That applies only where the similiter is proper to be entered; where it is matter of form. It has not the effect to dispense with pleadings necessary *to an issue. It cures misjoining of issue, but does not dispense with an issue.
    The objection, “is not to the informality of the replication in concluding to the country while it affirmed new matter. ’ ’
    It is not an objection to the replication at all. Nor is it an objection that the simili-ter was not added; it goes beyond.
    It is that the replication, notwithstanding its conclusion to the country, was nevertheless a replication, on which the clerk could not enter the similiter. Por it did not end the pleading; did not bring the parties to issue. It remained for the defendant to rejoin to the new matter averred in the replication, which the clerk could not shut him out from doing, because of the erroneous conclusion thereof; that it is to-the substance of the plea, and not its conclusion the clerk must look in deciding whether or not to add the similiter, and when he decided here not to enter the sim-iliter he decided not against his “obvious duty,” but plainly right. It is only when the plaintiff takes issue on the defendant’s pleading, or traverses the same, that the plaintiff may proceed as if there were a similiter. § 27, ch. 171, Code 1860, page 712.
    Here the plaintiff did not take issue, traverse or demur, and could not therefore proceed as if there were a similiter.
    In this state of the pleadings, how can it be said “the case was regularly tried on its merits by a jury.” Juries are sworn to try issues, and on this important plea, going to the very foundation of the action, there was no issue made up.
    And, in fact, the jury were not sworn to try any supposed issue springing out of this plea. They were sworn to try “the issue joined,” not the issues—but the one, the only issue, to wit, the general issue joined on the plea of not guilty. And it is submitted, it is no ’‘'answer that “the omission was overlooked or disregarded, or immaterial. ’ ’
    There is a mode of making up issues on pleas received in court. See it in 1 Rob. Old Prac. 222. Parties are not allowed to disregard it. They must come to issue before they go to trial. They cannot waive this cardinal rule of Virginia jurisprudence. And if the court which tried the case fails, for whatever reason, to see that it is done, it will be fatal in the Court of appeals. The cases are numerous to that effect; cases in which the exception was taken, as it is objected is done here for the first time, in the Court of Appeals; for, if the defect has been noticed in the lower court, it would have been corrected.
    Verdict does not cure the error. See the cases collected by Mr. Robinson, in the Old Practice, page 220-1. See what he extracts from the case of Totty’s ex’or v. Donald & Co., 4 Munf. 430, in which nonassumpsit and a special plea were pleaded. “Upon the first plea issue was joined, and to the second the plaintiffs filed a special replication, to which there was neither demurrer nor rejoinder. The record stated that the jury were sworn to try the issues joined (not, as in this case, the issue). Upon both pleas there was a verdict for the plaintiffs, and judgment rendered accordingly. The Court of Appeals was of opinion that1 ‘ there being no rejoinder, the special replication to the second plea was no issue on that pleaand for this cause reversed the judgment, set aside the verdict, and remanded the cause for further proceedings.” 1 Rob. Prac. 221.
    Bouldin, Marshall & Bouldin, for the ap-pellee.
    1. The technical exception to the state of the pleadings, taken in this court for the first time by the learned counsel for the appellee, involving, as it does, matter of form merely, does not appeal very forcibly *to the favorable consideration of the court, and is untenable.
    However irregular and informal it may be to conclude a plea to the country, when it should properly conclude with a verification, such irregularity is now regarded as a matter of form only, and is no longer, as formerly, the subject of a general demurrer. 5 Rob. Prac. p. 182, § 8, and cases there cited. Not being the subject of general demurrer, and special demurrers being abolished, and no objection having been taken in the court below to the form of the pleading, nor any motion made to correct its conclusion, all objection on that score must be considered as waived; and it was the obvious duty of the clerk, under the Virginia statute, to add the similiter. Had that been done, it will not be pretended at this day, that the judgment would be reversed after verdict on account of the informal conclusion of the plea. But it was not done; yet the omission was overlooked, or disregarded as immaterial, and the case was regularly tried on its merits by a jury, who rendered a verdict, which was approved by the court.
    After verdict and judgment thus rendered, no exception will be allowed for want of the similiter. Code 1860, ch. 181, § 3, p. 742-3.
    2. The record adduced in evidence could not be relied on as an estoppel, either in pleading, or as evidence. In Apsden & others v. Nixon & others, 4 How. U. S. R. 467, the Supreme court, following the well known rule adopted in the Dutchess of Kingston’s Case, held, that “a judgment or decree set up as a bar by plea, or relied on as evidence by way of estoppel, to be conclusive, must have made—
    “1. By a court of competent jurisdiction upon the same subject matter.
    “2. Between the same parties.
    “3. Ror the same purpose.”
    *The rule thus laid down was reaffirmed by the same court in the case in 24 How. U. S. R. 333, Washington, Alexandria & Georgetown Steam Packet Co. v. Sickes, &c. ; and in United States v. Dane, 8 Wall. U. S. R. 185, it was held that “a record of a judgment on the same subject .matter cannot be set up as an estoppel, when neither the record is set forth, nor the finding shews on what ground the court put its decision, whether for want of proof, insufficient allegations, or on the merits of the case.”
    Now, the record offered as evidence in this case, whilst it shews a contest between the same parties, was not “upon the same subject matter,” nor “for the same purpose’ ’ sought to be obtained by the existing suit.
    This suit alleges a permanent injury to real estate: to land.
    That alleged an injury to personalty: to crops, severed to a great extent, and stored on the land.
    In this suit we are asking damages for permanent injury to our land.
    In that we asked compensation for crops destroyed.
    It is respectfully submitted, that both the subject matter and purpose of the two suits are wholly dissimilar; and so thought both court below and jury.
    It will be observed, that there was no allegation in either suit, that the erection of the embankment across the low grounds of the appellee was an illegal or wrongful act. The actions were trespass, but were both in case for consequential damages; and the jury might well find, as—-with the approval of the court-—they did find, that the consequences alleged in the declaration did result in the one case from the unskillful erection of the embankment; whilst the destruction of the crops charged in the other case, was not a consequence, in any degree, of the embankment; but that the latter were washed away and destroyed by the natural and unavoidable effect of a very great and unusual flood, sufficient of itself to produce the result *(as was in fact the case) ; and yet, by the unskillful erection and subsequent breaking and washing away of the appellant’s embankment, and a change in the channel of the stream, caused thereby, the jury might also find that the appellee’s land was covered with sand, sobbed, abraded, and greatly injured. So far from these cases being the same, it is respectfully submitted, that when strictly analyzed, it will be difficult to find the slightest similitude.
    It is not perceived how, under the well known rules of law applicable to estoppels, such a record as that offered in evidence can be relied on as an estoppel in such a case as this.
    Not being conclusive as an estoppel, it is merely a fact in the cause; and the other important facts not being fully certified, the judgment of the court below cannot be reviewed here.
    3. In reply to the suggestion, that the land owner has been already paid for the flooding of his land, by the original condemnation and assessment of damages, we think it enough to say, that it is apparent, not only from the special replication, but on the face of the declaration, that the ap-pellee’s claim was to recover for damage to his property, not only not foreseen and estimated by the commissioners, but which, from the very nature of the case, could not have been foreseen and estimated; being the unexpected result of a breach of the embankment, caused by unskillful construction.
    We need not cite authority to shew that such unforeseen injury is not covered by the original assessment of damages.
    
      
      He had been counsel in the cause.
    
    
      
       Special Replication — Want of Rejoinder. — The principal case is cited by many subsequent ones as authority for the proposition that, though no rejoinder (or further pleading) is filed when the replication (or other pleading) alleges new matter, yet, If the record states that the jury was sworn to try, or rendered a verdict on, the issue joined, and the cause is tried on its merits, such a technical irregularity will be treated as a misj oinder ol issue and will be cured by the statute of jeofails; and will not be looked on as a nonjoinder which the statute does not cure. See Dickinson v. Dickinson, 25 Gratt. 325; Bartley v. McKinney, 28 Gratt. 757; Simmons v. Trumbo, 9 W. Va. 363; Huffman v. Alderson, 9 W. Va. 634; B. & O. R. R. Co. v. Bitner, 15 W. Va. 460; Henry v. Ohio R. R. Co., 40 W. Va. 239, 21 S. E. Rep. 865; Curry v. Mannington, 23 W. Va. 19; Chancey v. Smith, 25 W. Va. 408. See also, Bart. L. Pr. (2d Ed.) 474, 479, 481, 482, 750, 1352 ; 4 Min. Inst. (3d Ed.) 722, 743, 942, 1074.
      In Dickinson v. Dickinson, 25 Gratt. 325, the court said: “Another objection made by the plaintiff is to the failure of the defendants to put in a rejoinder to plaintiff’s replications to pleas Nos. 2 and 3 respectively. The record slates that the plaintiff replied specially to pleas Nos. 2 and 3, and generala-to plea No. 1 and ‘issue was joined thereon.’ upon the authority of Southside R. R. Co. v. Daniel, 20 Gratt. 344, and cases there cited, this is sufficient to show that the issue was in fact joined and duly tried by a jury,’’
      In Simmons v. Trumbo, 9 W. Va. 363. the court said: “The defendant's assignment of error, that there was no replication to the plea of the statute of limitations, nor any issue upon this plea, are not well taken as grounds for reversing the judgment. The entry on the record, quoted above, shows that, by this entry, the plea of payment, and of the sta tute of limitations, are treated as together constituting one plea, on which the record says issue was joined. If these pleas had properly, each of them, concluded to the country, this entry would be held as equivalent to an issue on each of the pleas. Gallego v. Moore, 4 Munf. 60. But the plea of the statute of limitations, and payment, should have concluded with a verification, and issue could not have been joined upon them by adding a similiter, but only after a replication; and this joinder of issue was, therefore, improper. But we think it must be regarded as a misjoinder of issue, which, after verdict, is covered by the statute of jeofails.
      “It is true that, at one time, it was held, in Virginia, that such an error was not cured by the statute of jeofails (see Stevens v. Thornton’s Adm’r, 1 wash. [155] 194, and Wilkinson’s Adm’r v. Bennett, 3 Munf. 314); but the contrary was subsequently held in Moore v. Mauro, 4 Rand. 488; and this decision apparently met the approbation of the court in the case of Southside Railroad Co. v. Daniel, 20 Gratt. 360. I think, therefore, this was a misjoinder of issue, cured by Code of Va. Ch. 181, Sec. — ; Code of W. Va. 1868, Ch. 134, Sec. 3.”
      And in Huffman v. Alderson, 9 W. Va. 634, the court said; “The Virginia cases formerly held, that when there was a special replication containing new matter, there can be no issue thereon without a rejoinder, and that this objection is not obviated by the statement in the record, that the jury were sworn to try the issue, or rendered a verdict on the issues joined; but it was held otherwise in a more recent case of Moore v. Mauro, 4 Rand. 488, and this decision was approved in Southside Railroad Co. v. Daniel, 20 Gratt. 360. In that case, as in this, the record shows no issue made upon the special plea; one had been made upon the general issue, and the j ury was sworn to try the issue, but, in their verdict, they state that they find for the plaintiffs on the issues joined. The court held that this was a mis-joining of issues, cured by the statute of jeofails. Our case resembles this in most respects. * * * In the case now before us, this failure to make up the issues has not even been assigned as an errorin this court, nor has any allusion to it been made by counsel in their argument. It would seem to have entirely escaped attention that issues had not been properly made up. To reverse the case now for such an error, would be to sacrifice justice to a mere technicality, in no way affecting the merits. Basing our action on the two Virginia cases referred to, I think we should regard this as a misjoinder of issue, cured, after verdict, by the statute'of jeofails.”
      See the principal case distinguished in Griffie v. McCoy, 8 W. Va. 208.
    
    
      
       Same — Same—When Cured by the Statute of Jeo-fails. — See principal case approved in Douglass v. Central Land Co., 12 W. Va. 512.
    
    
      
       Estoppel by Record —Judgment. —See principal case cited in Allebaugh v. Coakley, 75 Va. 637. See also, monographic note on "Estoppel” appended to Bower v. McCormick, 23 Gratt. 310.
    
    
      
       Condemnation Proceedings-^-Assessment of Damages —Subsequent Injury. — See the proposition laid down in the fifth head-note approved in A. & D. R. R. Co. v. Peake, 87 Va. 136, 12 S. E. Rep. 348; Norfolk, etc., R. Co. v. Carter, 91 Va. 594, 22 S. E. Rep. 517; Watts v. Norfolk, etc., R. R. Co., 39 W. Va. 201, 19 S. E. Rep. 523.
    
   STAPLES, J.

This is an action of trespass on the case for damage to the plaintiff’s land. The declaration charges the defendant with erecting an embankment and other structures across the lands of the plaintiff, without leaving sufficient arches or waterway to allow *the flood waters of Buffalo run to escape as they had been accustomed; and in consequence thereof the flood waters of said run became accumulated in great quantity upon the low lands of the plaintiff, injuring the same, and rendering them permanently unfit for cultivation.

The defendant pleaded not guilty; upon which issue was joined. He also filed a special plea alleging, in substance, that the commissioners, duly appointed, had awarded the tenant of the freehold, under whom plaintiff claimed, the sum of $1,362, as a just compensation for the land taken by the company, and for the damage to the residue of the tract; that the sum so awarded had been duly paid by the defendant to said tenant of the freehold, and the report of the commissioners confirmed by the proper court.

To this plea the plaintiff put in a special replication, averring that the damages to the lands of the plaintiff, set forth in the declaration, resulted from a negligent and improper construction of the defendant’s Works, and were not assessed or ascertained by said commissioners; concluding to the country.

To this replication there was no rejoinder. The record states that the jury “returned into , court, and upon their oaths rendered a verdict ‘upon the issues joined’ for the plaintiff.”

It is now insisted that, though a misjoin-ing of issue is cured by the statute of jeo-fails, yet that act will not sustain a verdict where no issue has been in fact joined; and in this case the special replication, containing new matter, there can be no issue thereon without a rejoinder; and this objection is not obviated by the statement in the record that the jury were sworn to try or rendered their verdict upon the issues joined. It must be admitted the cases cited by appellant’s counsel strongly sustain this view. The case of Moore v. Mauro, 4 Rand. 488, is, however, a later decision than either of *those cited, and maintains a contrary doctrine. There the defendant pleaded that the action was founded on an account of goods, wares and merchandise; and that the cause of action did not accrue within one year. The plaintiff replied that the plaintiff and defendant were merchants, and goods were sold and delivered by plaintiff as a merchant, and so purchased and received by the defendant; concluding with a verification.

There was no rejoinder to this replication, but the record stated ‘ ‘ that issue was thereupon joined.”

It was objected that there was no issue; but the court held this was a misjoining of issue which was cured by the statute of jeofails. It does not appear from the report of the case, that the previous decisions were cited, or in any manner alluded to, either in the argument or the opinion of the court. This is the more remarkable, as the cases are in direct conflict, unless, as has been suggested, the statement in the record in Moore v. Mauro, “that issue was joined on the replication,” distinguished that case from Wilkinson’s Adm’rs v. Bennett, 3 Munf. 314; where the record states “the jury were sworn upon the issue joined.” This is . certainly a very narrow and unsatisfactory ground upon which to adjudicate the rights of parties. Besides, in Stevens v. Thornton’s Adm’r, 1 Wash. 194, an entry upon the record after the replication filed, ‘1 that issue was thereupon joined, ’ ’ was held to be insufficient when it appeared there was no issue.

The decision in Moore v. Mauro, would seem to be more in harmony with the spirit of the modern cases, and the disposition manifested by the courts to disregard mere technical objections, unless there be omitted something so essential to the action or de-fence that judgment according to law, and the very right of the cause, cannot be given; more especially where the parties, as in this case, have gone to trial upon the merits, submitting the • cause to the jury as though the issues *had been more formally joined. The certificate of the judge presiding at the trial, shews that the subject matter of the plea and replication was fully investigated, was the point to which the evidence of both plaintiff and defendant was principally directed, and must have been passed upon by the jury.

No objection for the nonjoinder of issue was made, either before or after the rendition of the verdict. The cause was tried in August, 1859; a motion made by the. defendant for a new trial and overruled; and a writ of error and supersedeas from this court obtained in that year. During all this time this objection has never been made; and now, after the lapse of nearly twelve years, we are asked by the defendant to reverse the judgment for a defect in the pleadings directly attributable to its own negligence. The’effect of sustaining such an objection now would be the sacrifice of the justice of a cause upon a mere technicality in no way affecting the merits, and to hold out to parties inducements to omit some purely formal proceeding easily overlooked in the hurry and confusion of a trial, with a view to a reversal of'an unfavorable verdict.

Under these circumstances, I think this court, in this case, should follow the rule announced in Mdore v. Mauro, if there was-no other ground upon which its decision might be based. But the question here may be settled without reference to the precise point involved in the previous decisions.

It is a rule of pleading, that whenever the replication contains new matter it should conclude wtih a verification, to afford the opposite party an opportunity of answering it. In such case there will not be an issue until the defendant adds the rejoinder. But when the replication properly concludes to the country,’ the making up the issue by adding the similiter, is mere matter of form. This may be done by the clerk; but *the failure to do so is not ground of error. The rule just stated is subject to this qualification, that although the replication may contain new matter, yet if the defendant cannot take .any new or other issue in his rejoinder without a departure from his plea, the replication may, notwithstanding the new matter, conclude to the country. 1 Saunders R. 103 a. ; Carthrae v. Clarke, 5 Leigh 268.

The defendant pleaded that compensation had been made the tenant of the freehold for the land taken, and for the damage to the residue of the tract. The plaintiff replied that in consequence of the negligent construction of the work, the damages sued for were-not assessed nor foreseen by the commissioners.

Suppose the defendant had rejoined, what new issue could he have taken, or what new matter averred, without a departure from | his plea? He could only have rejoined that the work was properly constructed, and the damages were foreseen and assessed by the commissioners. And thus the parties would have been formally and technically at issue on the precise ground with respect to their pleadings, they in fact occupied on the trial.

The same defect occurred in the pleadings in the first case tried, in which there was a verdict against the plaintiff, and upon which the defendant is now relying as an estoppel.

It is not improbable that the counsel, in both cases, for plaintiff and defendant, considered the replication as substantially a denial of the plea, upon which the issue might at once be tendered, and to which the defendant could make no answer, other than that contained in the plea.

If these views be correct, an issue was properly tendered by the replication, and the failure of the defendant to join therein is cured by the statute.

The second question to be considered is, whether the *verdict in the first case tried presents a bar to a recovery in this suit. There can, of course, be no doubt that a verdict in one suit will be conclusive in every other between the same parties, where the cause of action is the same; upon the ground that what has once -been judicially determined shall not again be made the subject of controversy. But it has been settled by numerous cases, that to make such verdict available as an estoppel, or conclusive as evidence, it must appear not only that the same matter was in controversy, but that it was actually decided; and that where the verdict of the jury may have been founded upon one of two points, it will not operate as an estop-pel as to either. 2 Smith’s Beading Cases 374. Although the testimony may have been sufficient to establish a particular fact, and that fact may have been involved in one of the issues to be tried, yet if it be doubtful whether the verdict was based upon such fact, it will not operate as an estoppel.

In Long v. Baugas, 2 Ired. R. 290, it was decided that a verdict, in an action of det-. inue against the plaintiff, on the plea of non detinet, is not sufficient evidence in another suit to show that the plaintiff had no title to the property demanded. Judge Ruffin said the verdict might have proceeded on various grounds, suggested by him; that the plaintiff had no title, or that the defendants did not jointly detain the property. It was impossible to tell on what ground the jury went, possibly upon either or all the grounds together. And if evidence were allowable, to show the grounds upon which the verdict was rendered, it was clear the evidence did not show that the verdict was given, necessarily, on the very fact that the plaintiff had no title.

According to the New York decisions, parol proof may be given to show the grounds upon which the verdict was rendered in the first action, where the record does not disclose them. But it is there held, also, it *will not be sufficient to show that the testimony established a particular fact; it must clearly appear that the verdict was based upon that fact. Jackson ex dem. v. Wood, 3 Wend. R. 27; Lawrence v. Hunt, 10 Wend. R. 80. In McDowell v. Rangdon & als., 3 Gray’s R. 513, it was decided that a verdict for the defendant in an action at law for obstructing the flow of water to the plaintiff’s mill, on a plea of not guilty, and a specification of defence denying both plaintiff’s right and any injury thereof, are not a bar to another suit for the same matter, unless it appear either by the verdict, or extrinsic evidence, that the defendant prevailed because the jury found that the plaintiffs had not the right which they claimed. Metcalf, J., said it was doubtful whether the defendants succeeded in the first action, on the ground that they had the right they claimed in their specification, or on the ground that they had done no acts in violation of the plaintiffs’ rights. And the parol evidence admitted showed only that the plaintiffs at the trial claimed an ancient right to a prior use of the water; and that evidence was introduced on both sides in regard to the rights of both parties. The plaintiffs may have failed in their action because they failed to satisfy the jury that the defendants had violated their rights, even though the plaintiffs had all the rights which they claimed. See also Lore v. Truman, 10 Ohio State R. 45.

In the case of The Wash., Alex, and Geo. Steam Packet Co. v. Sickels and Cook, 24 How. U. S. R. 333, the Supreme Court of the United States decided that the record of a former suit between the parties, in which the declaration consisted of a special count and the common money counts, and where there was a general verdict on the entire declaration, cannot be given in evidence as an estoppel in a second suit founded on the special count, for the verdict may have been rendered *on the common counts. Also, 2 Smith Read. Cas. 794, and cases there cited.

Ret us see if these principles are not decisive of the question under consideration. The two actions were instituted against the defendant on the same day. The declarations in both cases were filed at the same time, and the same issues made up in both cases at the same term. The writ in the one case is for damage to the plaintiffs’ crops, in the other for damage to his land. The declarations follow the writs with great precision and care in each case. In that for the destruction of the crops, the declaration contains no allegation whatever of any injury to the land. That case was first tried, and the certificate of the judge, of the facts proved, shows that the attention of neither party was directed to the question of damage to the lands, nor was there a scintilla of evidence before the jury on that subject. The reason is obvious ; at that time the other suit between the same parties, for the recovery of such damages, was pending in the same, court, and must have been, understood and, tacitly agreed, as not a proper subject of investigation in the case then being tried. It may be that testimony, was offered to show that defendant’s works were improperly constructed, but the record does not show the fact. The main purpose of the defence was to show that the flood which; swept away plaintiff’s crops was the heaviest known in that section for twenty-five years, and that the crops of the plaintiff would have been utterly destroyed though the embankment had never been made. The judge certifies it wa§ proved on the trial that at the time of the injury the plaintiff’s lands were not covered with water to a greater extent than they had frequently been before defendant’s works were constructed; and if these works had never been constructed at all, all the plaintiff’s crops would h.g.ve been utterly destroyed. Surely the defendant could not be required to pay the plaintiff *for the loss of his crops, if it were clear they would have been destroyed with or without the embankment, although the jury might believe, from the evidence, the work was defectively constructed. No one reading this record can fail to perceive that the verdict was given on this ground, and upon no other. If, however, upon the pleading and the evidence, it is merely doubtful upon what ground the jury rendered their verdict in the first, action, such verdict will not operate as an estoppel, according to the authority of adjudicated cases.

It has been argued, and with much ingenuity and ability, that the averment of specific damage to the crops was not the gist of the first action, but only a consequence of the right of action; that flooding the ground of another is actionable in itself; that in such case the law will imply damage which need not be specially stated; that the plaintiff, though he might fail as to the crops, had the right in the first action to recover for injury to the land, and that the plea of not guilty put in issue both the act complained of, and all its consequences.

And so in detinue, the plea of non detinet puts in issue the title of the plaintiff, as well as the act of detention. But. in such case the verdict does not operate as an es-toppel, unless the ground upon which.it was rendered appear from the record or by extrinsic evidence.

In Thorpe v. Cooper, 15 Eng. C. R. R. 387, it was said that, although a declaration contains counts under which the plaintiff’s whole demand might be recovered, yet, if no attempt be made to give evidence of some of the claims, they may be recovered in another action. This proposition is sustained by numerous authorities. Hadley v. Green, 2 Tyrwhitt’s R. 390; Seddon v. Tutop, 6 T. R. 607; Wheeler v. Van Houten, 12 Johns. R. 311; and Irwin v. Knox, 10 Johns. R. 313. It is equally well settled that, whenever a question arises as to the identity of the matter litigated in the first suit, parol *evidence may be received of what transpired on the first trial, with a view to ascertain what was the matter decided 'upon by the jury.

The rule is thus laid down in 1 Starkie Evi. p. 263. A recovery in one action cannot be pleaded in bar of a second, where in trial of the first action no evidence was given.in support of the claim on which the second is founded. Where issue is taken on the fact whether the second action is brought for the same cause as the first, evidence is admissible of what passed at the first trial. See, also, Whittemore v. Whittemore, 2 New Hamp. R. 26; 2 Phillipps on Evidence, new ed. 18.

It may be argued, however, that this rule only applies where the causes of action are distinct and severable, and the plaintiff is at liberty to enforce them in one or several suits.

The rule undoubtedly is, that where a wrong or a contract is entire, and might be the subject of a single suit, the law will not permit it to be divided and made the subject of several suits. In such case, if there is a judgment for or against the plaintiff for part, the residue will be' as absolutely extinguished as if the whole demand had been embraced in the first suit. The difficulty is not in the rule, but in discriminating between causes of' action that are entire, and such as are separate and distinct,. .

Where the act is unlawful in itself, a right of action accrues immediately, and is held to include all subsequent damage flowing from it. In such cases there can be but one recovery between the parties, as the injury is not the cause of action.

Where, however, the act is lawful in itself, but negligently and improperly performed, the gist of the action is the damage, without which there can be no recovery. And I can see no good reason in such case why the plaintiff may not institute separate suits for distinct injuries, occurring at different times, to different *parcels of property, though resulting from one and the same act of negligence.

The case of Young v. Munby, 4 Maule & Selw. R. 184, substantially affirms this principle. The plaintiff declared against the defendant, the executor of the former rector of the rectory of Grilling, for the failure of such rector to repair the chancel and pew of the church, as it was his duty to do. The defendant’s plea was, that the plaintiff had impleaded the defendant in a former action for want of reparation of the rectory house, out-houses and cottages belonging to the rectory, and recovered a verdict; and that the same state of ruin and decay of the chancel and pew existed before and at the time of the commencement of the former action, and might have been included in the former suit.

It was argued by Tindal, that the plaintiff is not at liberty to subdivide one entire cause of action, and to bring so many separate suits as there may be consequences resulting from it; but that he is bound to include all the consequences under one action, and to recover damages for them once for all. Eord Ellenborough said there was no doubt in the case. If the defendant could make out that an injury caused by dilapidations was one entire identical injury, forming precisely the same cause of action for any part of it, then he would be right that the plaintiff could have but one action for it. But there was no good reason why this should be considered as one entire cause of action, compounded of the several injuries sustained in the several parts. They are different and independent injuries in respect of the different parts, the injury from the dilapidation of the house is one thing, and for the dilapidation of the chancel is another; the causes are distinct; the latter might not be consummate when the first was.

In this case, conceding for a moment that the plaintiff *had the right to recover in the first suit for flooding his lands, still it is apparent he neither enforced nor attempted to enforce that claim. There was no allegation in the declaration of such damage, nor evidence offered on the trial bearing upon that question. Had he attempted it, it is not improbable the evidence would have been objected to on the ground of the pendency of another action for damage to the land.

In the first suit, the gravamen of complaint was, that by reason of defective arches and waterways, the plaintiff’s crops were destroyed by the flood of August, 1856.

In the present case, the evidence bearing upon the question of the damage to the land, and the causes to which it was attributable, was very conflicting; so much so, that the presiding judge refused to certify the facts. We must, therefore, look to the declaration to ascertain the grounds of the action, and as there was a verdict for the plaintiff, it is to be presumed he sustained these grounds at least to the satisfaction of the jury. The averment is, that, owing to insufficient arches or waterways constructed by the defendant, the waters of Buffalo run became accumulated upon the low lands of the plaintiff in the month of August, 1856, and at various other times since, a portion of the embankment washed down and was thrown into the stream, obstructing the channel, and causing a reflux of the waters upon the adjoining lands of the plaintiff, sobbing and permanently injuring the same. It is apparent from this statement that the causes of action are different for distinct injuries, occurring at different times. The plaintiff’s right of action for the destruction of the crops was complete upon the happening of that event. Whether he could then have maintained a suit for the damage to the freehold, is very questionable. The extraordinary freshet which destroyed the crops, would also have flooded the lands, although the ^defendant’s works had never been constructed. The exemption from liability was as complete in the one case as the other. The permanent injury to the freehold, of which complaint only is made in this action, was sustained afterwards, was gradual in its character, and was the result of successive overflowings or accumulations of water upon plaintiff’s land, and which could have been in a measure prevented by removing the obstructions and the construction of suitable arches and waterways. Ror the first injury, the loss of the crops, the plaintiff might have sued immediately. Ror the second, the damage to the freehold, he had the right to bring a new action whenever the damage was sustained. Indeed, upon well settled principles, each overflowing of the plaintiff’s land was a continuation of the injury, for which there might have been successive actions. The fact that the plaintiff delayed his suit for the first injury until the occurrence of the damage in the second, it seems to me, imposes upon him no obligation to include both causes in the same action.

Before concluding this opinion, it is proper to notice a question which has been raised as to the right of the plaintiff to maintain this action. At the time of the assessment of damages by the commissioners the land was held by the personal representative of Mrs. Judith Randolph, and to him the money was paid. A short time thereafter the land was sold under a decree of court and was purchased by the plaintiff. Whether the works of the company were then completed does not distinctly appear. If they were not, the purchaser could not know that these works would be constructed in a negligent and imperfect manner. If they were so completed, it has been suggested the purchaser must be apprized of the defective execution of the work, and as his vendor received compensation for the land, and for damages to the residue of the tract, he must *take the land cum onere ; and further if the works of the defendant were so defectively constructed, a cause of action at once accrued to Mrs. Randolph’s representative, but did not pass to the purchaser, and the plaintiff has, therefore, no right to maintain this action.

The principle of law is well settled, that wherever any act injures another’s right, and would be evidence in future in favor of the wrong doer, an action may be maintained for the invasion of the right without proof of any specific damage. The reason is said to be that the repetition of the act may, in the progress of time, impair or defeat the right, and were the owner required to wait for some appreciable injury before bringing his suit, he might lose the right without a remedy to preserve it. But this principle can have no application to a case like the present. No right of the land owner was infringed by the construction of the company’s works. Upon the payment of the damages assessed by the commissioners, the title to the land taken for the railway immediately vested in the company in fee simple, and thereafter the relation sustained by the land owner and company to each other was simply that of vendor and purchaser. Being the owner of the land thus acquired, the company had complete dominion of the soil, and might place thereon such structures as it deemed proper in the prosecution of its work. Ror the exercise of this undoubted right it could not be accountable to any one unless for actual damage sustained thereby, however defective the work might be. The rule is thus laid down in a leading case: “The right which a man has is to enjoy his own land in the state and condition in which nature has placed it, and also to use it in such manner as he thinks fit, subject always to this, that if this mode of using it does damage to his neighbor, he must make compensation.” The ground of complaint in such case, is not the doing an unlawful act, but the doing an act, lawful in itself, *in such a careless and negligent manner that consequential damage is caused to the contiguous land owner.

If this view be correct, the estate of Mrs. Randolph had no cause of action by reason of the defective construction of the company’s works, as thereby no right of said estate was invaded, and no damage to the land occurred until after it had passed into the possession, and became the property of the plaintiff.

The company’s works may have been defectively constructed, but did it not necessarily follow that any injury to the landowner would result from such construction. Whether it would or not would depend upon the violence of frequency of storms, the action of the weather, and other agencies, whose influences could neither be estimated nor foreseen. The damages in such cases would be purely speculative, and the result would be, that in many instances the company would be required to pay for injuries that would never occur, and in others escape the payment of damages which might be sustained long after the verdict was rendered.

If a right of action accrues so soon as the work is defectively done, this injustice would follow. If the land-owner fails to sue within five years thereafter, his' action is barred, though his property should be rendered utterly valueless within the five years by a reflux of the water thereon occasioned by such defect.

In Bonomi v. Backhouse, 96 Eng. C. L. R. 622, the plaintiff was the owner of the reversion of an ancient house, and brought his action,alleging that the defendant.negligently and without leaving proper support, worked the mines under the contiguous land. No actual damage had occurred until within six years, and it was claimed the action was barred. The court of Exchequer, reversing the Queen’s Bench, held that no cause of action accrued for the mere excavation by the defendant on his own land, so long as it caused no damage *to the plaintiff’s. The judge said, if the cause of action arose when the act was done, without regard to the injury, the jury would have to decide upon the speculative question whether any damage is likely to arise; and it might well be, that in many cases the jury would give large sums of money for apprehended damage, which, in point of fact, might never occur, and in other cases, upon the evidence of mineral surveyors and engineers, find that no damage was likely to occur when the most serious injury might afterwards happen; and in such case no new action could be brought for any subsequent damage occurring, because if the original act was unlawful, all the damage consequent upon that unlawful act is satisfied by the first recovery. The authority of this case has been repeatedly recognized, and is generally regarded as sound law.

The injustice of a contrary rule is made manifest by a single illustration. A railway company having constructed a defective culvert .or other structure, ascertains that the land of the adjoining proprietor will be flooded and injured, and immediately remedies the defect by a proper culvert, so that no damage to the land can ever occur. It seems to me that fact would be a conclusive answer to an action brought for the defective construction of the work in the first instance. The defendant might well say that the plaintiff had not only sustained no damage, but beyond all dispute never would sustain any damage. But if the cause of action arises by reason of the defect alone, the right having once vested could not be extinguished.

These considerations serve to show that, to maintain an action against a railway company for the' erection of defective structures upon its land, the plaintiff must aver and prove some special damage, and upon proof of that he is entitled to recover whenever his title may have been acquired.

The case of Lawrence v. The Great Northern Railway *Co., 4 Eng. Law and Eq. R. 265, is an authority directly in point. There the declaration averred that the defendants erected an embankment across certain low lands, without leaving sufficient arches for the flood waters of the river Dun to escape, by means of which said waters became accumulated on plaintiff’s lands.

The defence was that before the plaintiff, who was a mere tenant for years,became possessed of the land, the defendant had paid to the owner, under whom plaintiff claimed, the amount awarded such owner, as a compensation for the land purchased and for all damage done or likely to be done to the remaining lands; and that before plaintiff became possessed of the close the defendants constructed their arches and embankments in the mode and according to the specifications mentioned in the award. The plaintiff’s right to maintain the action was not denied. The only question considered was whether the compensation received by the owner embraced all possible and contingent damage arising from the construction of the work, although neither foreseen nor even guessed at by the arbitrator. The court held that the company might,'by executing their arches with proper caution, have avoided the injury which the plaintiffs sustained, and the want of such caution was sufficient to maintain the action.

In Pittsburg, Fort Wayne, and Chicago Railway v. Gilliland, 56 Penn. St. R. 445, the same questions were presented and discussed as in the previous case.

This was also an action against a railway company for damages to the plaintiff’s premises, a tenant for years, arising from the construction of an insufficient culvert, by means of which plaintiff’s lands were overflowed in time of heavy floods. It was insisted that the plaintiff’s remedy, if any he had, must be held to be included in the special remedy given for the appropriation of the land, under which the damages had been duly assessed, and paid to the tenant of the freehold *long anterior to the lease under which plaintiff claimed. But the court held that no estimate of damages could be founded upon an expectation that the company will omit its duty, or on the ■ supposition that it will so negligently and unskillfully construct its work as to produce injury; or whether it will fail at all is unknown and can furnish no guide to govern the estimate. If the culvert was so unskillfully and negligently constructed as to be insufficient to resist the high water of the stream, the company building it would be liable to any party injured thereby. Hentz v. Long Island R. R. Co., 13 Barb. R. 646, is to the same effect. 11 Cush. R. 221.

All the authorities agree that the assessment of damages under the statutes applying to that subject, is only a bar to an action for such injuries as could properly have been included in such assessment. The commissioners have the right and are bound to presume the company will construct its works in a proper manner, and they have no right to award damages upon the supposition that the company will negligently and improperly perform its work. A failure to construct its works in a proper and skillful manner will therefore impose a liability for damages to any one who may sustain any loss or injury by reason of such negligence; it being well settled that such damages are not to be considered as included in the estimate of the commissioners. In this case, whether the works of the company were or were not properly constructed was a question exclusively for the jury. Upon this point the evidence was so conflicting, the judge of the Circuit court refused to certify the facts. Upon well-settled principles, where the evidence is contradictory and a new trial is refused by the court which presided at the trial, its decision is not the subject of a writ of error or examination in an Appellate court. *The judgment of the Circuit court must therefore be affirmed.

The other judges concurred in the opinion of Staples, J.

Judgment affirmed.  