railroad company, having done a wrong, intended to continue in such wrong-doing. Undoubtedly, if the injured party treats the defective structure as a permanent source of injury, and recovers the full amount of damages, both present and prospective, which his property sustains, or may sustain, by reason of such defective structure, he will be estopped from bringing a second action for damages. But where the railroad company has, as in this case, built an imperfect and faulty bridge over a stream of water crossing its right of way, a party suffering damage therefrom has a right to regard the nuisance as of a transient character, and, instead of bringing one action for the whole injury to the value of his property resulting from the original construction of the nuisance, he may sue for the amount of such injury as he suffers from its continuance. McConnel v. Kibbe, 29 Ill. 483.

shown by record of former

recovery.

The question, then, arises, whether or not the record of a former recovery, introduced in evidence by appellant, showed a recovery for all the damages, present and prospective, which appellee's property had suffered, or might suffer, from Same. What is the erection and maintenance of the bridge. The pleadings in the former suit do not present precisely the same issue as is presented by the pleadings in the present suit. The second count of the declaration in the latter suit alleges that the defendant "did, to wit, on May 1, 1884," etc., "wrongfully maintain and continue a certain obstruction," etc., "being duly requested to remove said wrongfully constructed obstruction to the free running and flowing of the water in said. stream." This count claims damages for the continuance of the nuisance. There was no such count in the declaration in the former suit. An action may be maintained for the creation of the nuisance, and a subsequent action may be maintained for its continuance. The continuance of that which was originally a nuisance is regarded as a new nuisance; and, although a recovery may be barred upon the original cause, an action on the case may be brought, at any time before an entry is barred, to recover such damages as have accrued, by reason of its continuance, within the statutory period. McConnel v. Kibbe, 29 Ill. 483.

An examination of the declarations in the former and in the present suit leaves it doubtful whether the subject-matter involved in the latter was actually passed upon in the former, and hence it was proper to receive parol evidence to show the truth. Where a former recovery is relied on as a bar, parol evidence, not contradictory of the record, may, in case of such doubt, be introduced to show what was included within and investigated on the trial of the issue. If the face of the record does not show the full and true state of the controversy and the matters investigated, parol evidence must be admitted to supply what is not shown. 34 A. & E. R. Cas. — 12.

Vanlandingham v. Ryan, 17 Ill. 25; Barger v. Hobbs, 67 Ill. 592. 1 Greenl. Ev. (14th ed.) sect. 532, says, "When a former judgment is shown by way of bar, whether by pleading or in evidence, it is competent for the plaintiff to reply that it did not relate to the same property or transaction in controversy in the action to which it is set up in bar; and the question of identity thus raised is to be determined by the jury upon the evidence adduced." The evidence introduced upon the trial of this case tends strongly to show, and, indeed, seems to be undisputed by the appellant, that the damages recovered in the former suit were such as resulted from an overflow of water occurring before the beginning of such suit, and from injuries to crops then growing upon appellee's land, and from injuries to about five acres of said land caused by the deposit thereon of drift, gravel, dirt, sand, and stone; while the injuries which form the basis of the present recovery have been caused by overflows occurring since the institution of the former suit, resulting in the deposit of sand, stone, gravel, etc., upon nine acres of land, which do not include the five acres above mentioned, and resulting in the destruction of crops planted since the former suit was begun. It follows, that, by the recovery of the present judgment, appellant is not required to pay the same damages twice.

The views herein expressed dispose of the various objections made by counsel for appellant to the instructions and to the introduction of evidence.

to allowing

Some proof was introduced upon the trial below which tends to show that 14 acres of appellee's land were damaged by the floods of 1884 and 1885, and that such 14 acres inInstructions as cluded the 5 acres for the damage to which a recovery damages. was had in the first suit. But the jury were sufficiently warned by the instructions, given for both appellant and appellee, against allowing any damages for injuries which formed the subject-matter of the former recovery. The first instruction given for the plaintiff, after directing the jury as to the assessment of damages, closes with the words, "not including, however, any damages recovered in the first suit, the judgment in which is in evidence before the jury." The second instruction given for plaintiff closes with the words, "not including any damages recovered or claimed in the former suit mentioned in the evidence." The fifth instruction given for the plaintiff contains the following sentence: "And the jury are instructed not to allow said plaintiff any thing for or on account of damages done to his close, premises, or crops on or prior to the eighth day of October, A.D. 1883." The eighteenth instruction given for defendant told the jury "that the record of the former action . . . is conclusive against the plaintiff in this action as to

all matters which were put in issue or offered in evidence on the first trial;" and the nineteenth instruction given for defendant stated that such record was conclusive as to all matters which were put in issue on the trial of the former case, "no matter whether said Schaffer recovered all he claimed in such suit or not." The twentieth instruction given for defendant, which was prepared and asked for by defendant's counsel, is as follows: "The court further instructs the jury, as a matter of law, that for damages accruing after a judgment in a former action between the same parties, and arising out of the same cause, or resulting from one and the same injury, an action will not lie.

We perceive no such error in the record as would justify us in a reversal of the judgment. The judgment of the Appellate Court is accordingly affirmed.

In Action for continuing Nuisance, Judgment in former Suit is not a Bar. - See Omaha & R. V. R. Co. v. Standen, next case.

OMAHA & REPUBLICAN VALLEY R. Co.

V.

STANDEN.

(Nebraska Supreme Court.)

Eminent Domain Property injuriously affected. By the insertion of the words "or damaged" in the Nebraska Constitution of 1875, art. 1, sect. 21, a right to recover damages for injuries to property was conferred, although no property belonging to the party injured has been taken.

Railroad Bridge - Effect of Construction - Overflow of Land, — Where a railroad bridge is so negligently constructed across a river as to form an unlawful obstruction, and become a nuisance by causing an overflow of the river, no right of action accrues to the land-owner until he sustains an actual injury caused by such unlawful obstruction as by an overflow of his land.1

Same Continuing Nuisance Estoppel. The erection and maintenance of a bridge in such a position that it forms an obstruction to the flow of waters, and causes a periodical overflow of the adjacent lands, is a continuing nuisance, in consequence of which a recovery is limited to damages which may have accrued before an action is brought, and a judgment in one action is not a bar to a second action brought for damages sustained thereafter.

ERROR to District Court, Saunders County.

Action to recover damages for injuries sustained by plaintiff through an overflow of his lands. The facts are stated in the

I OBSTRUCTION TO STREAM BY BRIDGE, thereby causing the flooding of adjacent property. See post, Gulf, C. & S. F. R. Co. v. Pool.

opinion. Judgment for plaintiff, to review which the defendant brings error.

Error from Saunders County; Marshall and Post, Judges.
W. R. Kelly for plaintiff.

E. F. Gray and W. H. Munger for defendant.

MAXWELL, C. J.-The defendant in error brought an action against the plaintiff to recover damages for the negligent and wrongful construction of its bridge across the Platte Facts. River, whereby it is alleged that in March, 1886, a gorge was formed above the bridge, which threw the water of the Platte River out of its channel over the lands of the defendant in error, and thereby caused him a large amount of damage. The railroad company demurred to the petition upon the grounds. that the facts stated therein were not sufficient to constitute a cause of action. The demurrer was overruled, and, the company declining to answer, a judgment was rendered against it for the sum of $1,000. It now prosecutes a petition in error in this court; the question being, "Does the petition state facts sufficient to constitute a cause of action?"

It is alleged in the petition, that "the said defendant now is,. and ever since the year 1875 has been, a corporation duly incorporated and organized under and pursuant to the laws of the State of Nebraska; and ever since the year 1877 has been the owner of and engaged in running and operating a railroad leading from Valley Station, in Douglas County, to Lincoln, through the counties of Douglas, Saunders, and Lancaster in the State of Nebraska; that the plaintiff now is, and ever since the year 1882 has been, the owner in fee and in the actual possession of the lands described, as the south-west quarter of section six, in township fifteen north, of range ten east, and the north-east quarter of the south-east quarter and north half of the southeast quarter of the south-east quarter, and lot seven, and the north twenty-six and 40-100 acres of lot nine, of section one, of township fifteen north, of range nine east, comprising two hundred and fifty-nine acres in all, and all lying and being on the bottom land of the Platte River, and bordering on said river on the north bank thereof, in Douglas County, Nebraska. That ever since the year 1882, down to the committing of the wrongs. and injuries hereinafter complained of, the plaintiff resided on said lands with his family, and erected and maintained a dwellinghouse, barn, stables, storehouses, corrals, feed-yards, field and pasture fencing thereon, and cultivated a large portion of said land as a farm, and on a portion forest trees grew naturally, and on a portion plaintiff maintained a meadow for hay and pasturefor cattle, horses, and hogs, and carried on the business of

raising, feeding, and fattening cattle and hogs, and kept many horses and large quantities of hay and grain on said lands; that plaintiff's immediate grantor of said lands, one Everett G. Ballou, had, for not less than ten years immediately preceding his sale and conveyance to plaintiff of the same, owned and been in actual possession of and resided on said land, and cultivated, used, and maintained the business thereon, the same as the plaintiff after his ownership and occupation thereof, as aforesaid; that the plaintiff's said lands, ever since the year 1872, and as in its natural state and condition, were and have been lower than the banks of said Platte River, and as well as all the lands roundabout the plaintiff's said land, for many miles, were and have been ever since the year 1872, and as in its natural state, lower than the banks of said river; and plaintiff's said lands, as well as the said lands roundabout, ever since the year 1872, and as in its natural state, were and have been liable to be overflowed by any obstruction of the natural flow of said river; that the defendants, well knowing all of the foregoing facts, and of the said conditions of said lands, and of the occupation, improvements, and business thereon, maintained as aforesaid and against and contrary to notice and warning, did, negligently, unlawfully, and wrongfully, in the month of November, 1876, commence, and by the month of July, 1877, complete and construct and erect, a railroad bridge on its said line of railroad, between the counties of Douglas and Saunders in Nebraska, over and across the said Platte River, for its exclusive use, at a point about one-quarter of a mile above the plaintiff's said lands, in a westerly direction therefrom, the said bridge being so erected and constructed as to create an unlawful obstruction in said river, and to prevent the natural flow of ice and water therein, and to cause the natural flow of ice and water in the spring of the year to gorge, back up, and overflow the banks of said river, and thereby greatly injure and damage adjoining lands and property, and especially the said lands of the plaintiff as aforesaid, and the property thereon and the business thereon maintained as aforesaid; that by reason of the said bridge and as well the approaches thereto, being so negligently, wrongfully, unlawfully, and improperly constructed and erected by said defendant as aforesaid, the said bridge and its approaches, on or about the twenty-seventh day of February, 1886, did so obstruct the natural flow of ice and water in said Platte River as to threaten an ice-gorge and blockade at such point, and thereby cause the ice and water in said river to break over the north bank thereof, and to flow over the adjoining lands, and especially of the plaintiff's said lands to the immediate injury thereof, and to the injury and destruction of the plaintiff's said property and business thereon, all of which facts defendant well