knew at the time of such threatened and impending overflow and damage; that, notwithstanding such knowledge, and although notified of the then condition of said river, and of the obstruction and threatened overflow as aforesaid, and warned then of the probable consequences of permitting such obstruction to remain, and it then being practicable for the defendant to have removed said obstruction, and thereby to have prevented the gorge and overflow and damage to plaintiff that followed, with little expense, within not exceeding one day's time, and before any considerable overflow was caused, or any considerable damage was done, with but slight injury to said bridge, yet the defendant neglected and refused to remove said obstruction, or to make a sufficient opening in said bridge to allow the ice and water of said river to flow in the natural channel thereof; that as the direct, natural, and probable result of permitting said bridge and approaches to remain as an obstruction in said river as aforesaid, a large icegorge, at said last-mentioned date, commenced to form at said bridge and approaches, and so did form and continue for twentyfour days, of sufficient height and strength to completely turn the entire flow of ice and water running in said river, against, over, and through the said north bank of said river, at and above said bridge, and above the plaintiff's said lands, and to cause the said ice and water of said river to rush and flow with great force, depth, and violence over the plaintiff's said land, and over the surrounding lands, for many miles in extent, and so continue for twenty-four days, and until the pressure of ice and water against said bridge broke through and carried away a portion of the same, when said ice and water immediately receded and flowed down the natural channel of said river; that by reason of said ice and water being forced over and through said north bank as aforesaid, and the ice and water with great force, depth, and violence rushing and flowing over the plaintiff's said lands as aforesaid, and over the surrounding lands as aforesaid, the plaintiff's said lands, and the lands surrounding the same for many miles in extent, were inundated and overflowed for the space of twentyfour days, and thereby and in consequence of said ice-gorge and obstruction and wrongful and unlawful and improper erection . and construction of said bridge and approaches, the plaintiff was greatly injured and damaged in this, to wit, his said cultivated farm land of 125 acres was stripped of its soil over its entire extent, and the same was gullied out in places, and ridges of sand formed in places thereon, and large deposits of sand spread over the whole of it, so as that the said 125 acres, which was good farming land at the time of said overflow, was by said overflow greatly injured and rendered unproductive to the plaintiff's damage in this behalf in the sum of $625; his said meadow and

pasture land of 134 acres was stripped of its soil over its entire extent, its grass killed out, its surface gullied out and ridged, and the whole covered with a deep deposit of sand, and the natural forest trees, growing on a portion of said pasture land, were broken down, rooted up, and destroyed, to the plaintiff's damage in this behalf of $767.50; his fencing on said land to the extent of 480 rods of fencing was broken down and washed away and destroyed to his damage in this behalf $720; his corn in field on his said lands to the amount of 1,000 bushels was washed away and destroyed to his damage in this behalf of $200; his hogs to the number of 20, his cattle to the number of 18, and his horses to the number of 7, were forced from their stalls, feed-yards, and shelters, and exposed to cold storms, and to stand in snow, ice, and water for twenty-four days, without regular feed and care, and greatly reduced in flesh and condition, and injured to plaintiff's damage in this behalf $400; his hay on said lands to the amount of ten tons was wet and destroyed to his damage in this behalf $30; his labor and expense in endeavoring to save and care for said animals, and preserve his said property from the consequences of said overflow, amounted to not less than $100; to his damage in this behalf $100; and the plaintiff, in consequence of said overflow, was otherwise put to great expense, trouble, inconvenience, and hardship, and that the plaintiff's entire losses and damages in the premises are $2,842.50. Wherefore the plaintiff prays judgment against the defendant for the sum of $2,842.50 damages and costs.'

Eminent

domain.

Effect of words "or damaged "

in Constitution.

The plaintiff in error contends that there is no sufficient allegation that the bridge was negligently constructed, and that it forms an unlawful obstruction in the Platte River. The allegations in the petition as to the negligent construction of the bridge, and that it forms an unlawful obstruction in the river, are not as definite as they might be made; but under the liberal rules of construction of the Code they will be held sufficient to justify a recovery. The plaintiff in error contends that the insertion of the words "or damaged" in sect. 21, art. 1, of the Constitution of 1875, restrict the right of recovery to such damages as may have been reasonably anticipated at the time the structure was erected. The rule contended for was not taken into consideration by the constitutional convention in amending the section named. It is a matter of regret that the proceedings of the constitutional convention were not published; but it is a matter of unwritten public history of this State that the section above quoted was reported by the committee having it in charge, without the words "or damaged" inserted therein. And the words "or damaged" were inserted in open convention, on

motion of a member, to cover a class of cases not embraced in the former section, as where no property of the party injured had been taken. It was intended to furnish an additional remedy, not to curtail or restrict any right which previously existed, and the language will not warrant the narrow construction contended for.

This action is brought to recover damages for a bridge, alleged to have been negligently and unlawfully constructed by the plaintiff in error across the Platte River, so as to form an unlawful obstruction and create a nuisance.

No recovery until damages

In such were sustained. case there could be no recovery until actual damages had been sustained. Thus, suppose the owner of the land at the time the bridge was built had brought an action, could he have recovered for anticipated overflow? We think not. There must be actual injuries resulting from the unlawful obstruction to justify a recovery. Miller v. Railway Co., 16 N. W. Rep. 567; Drake v. Railroad Co., 19 N. W. Rep. 215; Cain v. Railroad Co., 3 N. W. Rep. 737. But it is contended that the plaintiff below being the grantee of Ballou, who owned the land when the bridge in question was constructed, the present owner cannot therefore recover. This position, however, is untenable. If the bridge in question is a nuisance, and an unlawful obstruction in the river, then every continuance of said nuisance is a new nuisance, for which, when damages have been

Action for continuance of nuisance.

Effect of one recovery.

sustained, an action may be maintained, the recovery being limited to such damages as have accrued before the action was brought. Beswick v. Combdon, Moore, 353, 1 Cro. Eliz. 402, and Penruddock's Case, 5 Co. Rep. 205; 3 Bl. Comm. 220; Rosewell v. Prior, 2 Salk. 460; Fay v. Prentice, I C. B. 828; Bowyer v. Cook, 4 C. B. 236; Holmes v. Wilson, 10 Adol. & E. 503; Thompson v. Gibson, 7 Mees. & W. 456; McConnel v. Kibbe, 29 Ill. 483, 33 Ill. 175; Staple v. Spring, 10 Mass. 72; Hodges v. Hodges, 5 Metc. 205; Baldwin v. Calkins, 10 Wend. 167; Beidelman v. Foulk, 5 Watts, 308; Blunt v. McCormick, 3 Denio, 283; Cumberland, etc., Corp. v. Hitchings, 65 Me. 140; Thayer v. Brooks, 17 Ohio, 489; Beach v. Crain, 2 N. Y. 86; 1 Suth. Dam. 202; Gould, Waters, sect. 387. It is said, however, that one recovery will bar a future action. This, in many cases, no doubt is true; and if a railroad had been constructed along a street, in front of the plaintiff's property, whereby he sustained damages, one recovery would bar a future action for the same injury. But where damages result from a continuing nuisance, a different rule applies, and a recovery may be had for each injury as it

occurs.

There was no error, therefore, in overruling the demurrer,

and the judgment of the court below is affirmed. Judgment accordingly.

Reese, J., concurs.

Brown

COBB, J. (dissenting). I cannot concur in the conclusion of the majority of the court, or the reasoning of the chief justice by which it is reached. The case of Railroad Co. v. Brown, 14 Neb. 170, was an action for damages al- Railroad Co. v. leged to have been caused by the same bridge in- examined. volved in the case at bar, in the spring of 1881. In that case the trial court instructed the jury, "that notwithstanding the fact that the railroad company, when it constructed its bridge, did so in a prudent manner, according to the best information it could obtain at the time of its construction, yet, if it subsequently appeared that its construction was such that damage would result from the gorging of ice against the bridge, and that damage did result to the plaintiff and other property-holders in the vicinity of the bridge by reason of the overflow of ice and water in consequence of said gorge, and the defendant had time. and opportunity and means, by a reasonable effort on its part in that behalf, to avoid or prevent such damage, it was its duty so to do, and it was required to use all such reasonable efforts to avert such damages, and if it failed so to do, it is liable to plaintiff for the damages sustained by him as resulted directly from such failure." This court held the above instruction to be erroneous, and for that reason reversed the judgment of the District Court.

Gravamen of the charge.

Negligent erection of bridge.

As I understand the petition in the case at bar, the gravamen of the charge against the railroad company is not the unskilful or negligent manner in which it built the bridge, but its negligence in failing to remove it, or change its construction when the ice-gorge was threatened, and it was notified thereof. If I am correct in this, and the instruction in the case above cited was Pleading. wrong, and this court justified in so holding, then the petition in the case at bar fails to state a cause of action. But if it was the object of the pleader to attack the original construction of the bridge, I do not think the petition sufficiently intelligible as to whether it seeks to charge the railroad company with negligence in building a bridge at the point where they did, or in building the kind of a bridge which they did.

The majority of the court, I think, understand the petition to charge the railroad company with keeping and maintaining a nuisance, in the bridge in question. Of course no one will contend that a railroad bridge across the Platte River, at or near the

site of this one, is a nuisance per se, or that it is not a great public necessity. Accordingly I think, that if it was the object of the pleader to charge the railroad company with the erection of a bridge in such a negligent and faulty manner as to be a nuisance, the petition should state by what fault of construction, which in the nature of things could have been avoided, the bridge became a nuisance.

My own view is, that if, in planning and constructing the said bridge, the railroad company brought to its execution the engineering knowledge and skill ordinarily practised in small works, and such knowledge and skill were practically applied to the building of said bridge, if the property of any person was damaged or became liable to damage, so that its value was depreciated by reason of the erection of such bridge, the case comes within the provision of the construction referred to in the opinion of the chief justice, that such damage should be compensated once for all, and that such bridge is not a nuisance. And I think that the burden of pleading, at least, was upon the plaintiff below, to show that the said bridge did not come within the above terms.

Property Injured but not Taken. - Owners of property adjoining a railroad are not usually entitled to damages for injury done to their property by the usual and necessary operation of the railroad. All damage done in this way is considered consequential, and is damnum absque injuria. See Colorado C. R. R. Co. v. Mollandin, 4 Colo. 154; Hyde Park v. Dunham, 85 Ill. 569; Patterson v. Chicago, D. & V. R. R. Co., 75 Ill. 588; Stetson v. Chicago & E. R. R. Co., 75 Ill. 74; Page v. Chicago, M. & St. P. R. R. Co., 70 Ill. 324; Nichols v. Somerset & K. R. R. Co., 43 Me. 356; Whittier v. Portland & K. R. R. Co., 38 Me. 26; Rogers v. Kennebec & P. R. R. Co., 35 Me. 319; Rochette v. Chicago, M. & St. P. R. R. Co., 32 Minn. 201; Shaubut v. St. Paul & S. C. R. R. Co., 21 Minn. 502; s. c., 17 Am. & Eng. R. R. Cas. 192; Thompson v. Androscoggin R. I. Co., 54 N. H. 545; s. c., 58 N. H. 108; Eaton v. Boston, C. &. M. R. R. Co., 51 N. H. 504; s. c., 12 Am. Rep. 147; Morris & Essex R. R. Co. v. Newark, 10 N. J. Eq. (2 Stockt.) 352; Selden v. Delaware & H. C. Co., 29 N. Y. 634; Bellinger v. New York C. R. R. Co., 23 N. Y. 42; Arnold v. Hudson R. R. R. Co., 49 Barb. (N. Y.) 108; Struthers v. Dunkirk, W. & P. R. R. Co., 87 Pa. St. 282; Hornstein v. Atlantic & G. W. R. R. Co., 51 Pa. St. 87; Case of Philadelphia &. T. R. R. Co., 6 Whart. (Pa.) 25; Richardson v. Vermont C. R. R. Co., 25 Vt. 465; s. c., 60 Am. Dec. 283; Alexander v. City of Milwaukee, 16 Wis. 247.

In some of the States, however, consequential damages are provided for by the Constitution or by the statute. In such cases the owner of the property injured though not taken is entitled to compensation. See Chicago & W. I. R. v. Ayres, 106 Ill. 511; Chicago v. Union B. Assoc., 102 Ill. 379; Rigney v. Chicago, 102 Ill. 64; Pittsburgh, Ft. W. & C. R. R. v. Reich, 101 Ill. 157; Chicago, M. & St. P. R. R. v. Hall, 90 Ill. 42; Brown v. Providence, W. & B. R. R. Co., 71 Mass. (5 Gray) 35; Dodge v. Essex, 44 Mass. (3 Metc.) 380; Republican Valley R. Co. v. Fellers, 16 Neb. 169; s. c., 29 Am. & Eng. R. R. Cas. 256; Gottschalk v. Chicago, B. & Q. R. R., 14 Neb. 550; Dearborn v. Boston, C. & M. R. R. Co., 24 N. H. 179; Clark v. Boston, C. & M. R. R. Co., 24 N. H. 114; Watson v. Pittsburgh & C. R. R. Co., 37 Pa. St. 469;