District of Columbia v. Hutchinson

Mr. Justice Morris delivered the opinion of the court: It is conceded that the sewer complained of was constructed in the year 1875, and not in 1886; and that the date of March 15, 1886, alleged in the declaration, is based upon the theory that the sewer constituted a continuing nuisance for the maintenance of which, as well as for the original construction of it, the defendant could be held liable. And there is no claim that at any time during the period covered by this declaration there was any action or active interposition of .any kind on the part of the District of Columbia. We are very clearly of opinion that the declaration in the first suit which has been mentioned was broad enough to authorize the recovery under it of permanent damages as for a permanent injury; and plainly the declaration was drawn with a view to such recovery. The nuisance complained of was of a permanent structure, and the damage alleged waa — 407 — damage to the market value of the lots. There could not well have been a broader allegation on which to base a recovery for permanent damages. We are advised, however, in argument, that in the trial of that suit, the court, at the instance of the defendant, limited the plaintiff’s right of recovery to the temporary damages that had accrued to him in the use of the property, and ruled that he could not in that suit recover permanent damages. And it is now argued that, because such ruling was made at the instance of the defendant, the defendant is bound by it in this suit; and that both that suit and this must be regarded, as the trial judge undoubtedly regarded them, as suits for temporary damages for a continuing nuisance. The record of the first suit comes to us in rather an imperfect condition; and from the papers before us we cannot definitely ascertain what the rulings were of the trial court in that case. But it seems to be admitted on both sides that the rulings were as stated. Assuming this to be the fact, we cannot see that it changes the aspect of the present case at all. If the judge made a mistake in his rulings in that case, that error cannot be considered here. If the plaintiff was prevented by it from recovering all that he should have recovered — although he seems to have recovered all that he had really expected, inasmuch as he recovered the usual percentage, one-half of the nominal amount stated in the declaration' — he might have had the mistake corrected upon writ of error. He cannot allege it as error in this suit; nor can he hold the defendant as estopped by it, even if the error was the result of the defendant’s action in requesting a prayer to that effect.' The case of the New York Elevated Railroad Company v. Fifth National Bank, 135 U. S., 432, relied upon in this connection by counsel for the defendant in error, is not applicable. There it was held, and most properly held, that rulings procured by a party cannot thereafter in the same case be alleged by the same party as error, and that he is bound by them in that suit. But it does not follow that he is bound by — 408 — them in any and all other suits in which he may be involved. If a party defeats a suit against him on one ground, it would be something unheard of to hold that he may not defeat another suit against him, even by the same plaintiff upon precisely opposite grounds. The rule of estoppel has never yet been understood to extend that far. This, however, does not prevent consideration of the scope and effect of the judgment itself as an estoppel. It is undoubtedly the general rule upon this subject that the judgment of a court of competent jurisdiction upon the same subject matter, between the same parties, and for the same purpose, constitutes a bar to any subsequent proceeding. This was so held by the Supreme Court of the United States in the leading case of Aspden v. Nixon, 4 How., 467; and the rule has been repeatedly reaffirmed in subsequent decisions. It is also true that when a claim is properly involved in the pleadings and issue in a cause and might have been decided therein, the judgment in the cause will be a bar to another action. Stockton v. Ford, 18 How., 418; McCall v. Carpenter, 18 How., 297; Packet Company v. Sickles, 5 Wall., 580. And neither the neglect of a party to avail himself of the claim, nor the erroneous ruling of the court as to the extent of it, can afford good ground for another suit. Stockton v. Ford, 18 How., 418. The neglect of the party is his own fault, and an erroneous ruling might have been corrected on writ of error or appeal. Upon neither ground can the finality of judgments be properly impeached. Now, we are very clearly of opinion that the declaration in the first cause was broad enough to authorize a judgment for permanent damages. What it specifically claims is damage to the market value of the property and depreciation in value; and this beyond question is to be construed as permanent injury, for which there can be but one recovery. It is true that there is also an allegation to the effect that by the alleged nuisance the plaintiff was prevented “ from having the use and benefit and enjoyment of the property in so large — 409 — and ample a manner as he might and otherwise would have done.” But even if the construction of this statement should be so far strained as that it should be regarded merely as a claim for temporary damages as for a continuing nuisance, the statement is so interwoven with the allegation of permanent depreciation, and the claim of permanent injury, that the jury could not have segregated the two in their verdict, and we are not justified in segregating them in our inspection of the record of the cause. , The work complained of in its nature was a permanent structure. It was a public work, constructed by the public authority, and therefore presumably for the public benefit; and it is not claimed that it was not in itself a proper construction, demanded by the public necessity, and properly built to accomplish its purpose. The claim is simply that the plaintiff’s land was injured by it; and this is virtually the equivalent of an allegation that the plaintiff’s land was taken for public use without just compensation for it, and without the previous legal formalities necessary and proper in such cases. It is not the case of an ordinary obstruction or of a nuisance, pure and simple, which should sooner or later be abated in any event, and for the abatement of which successive suits as for a continuing nuisance would be just and proper. It is not even a case where the use itself, apart from the original structure, would be a nuisance, as would be the continued operation of a railroad, the construction of which was unlawful in the first instance. After the first construction of the sewer there was nothing whatever done by the District of Columbia to incommode or injure the plaintiff. The gravamen of the plaintiff’s complaint is that the defendant “kept and continued the sewer”; that is, that it did not remove it. Now, even in the case of an ordinary nuisance that may be readily abated, such, for instance, as throwing earth on the land of another, there is no liability on the part of the trespasser to remove the nuisance when the person injured has had opportunity to recover full damages for it in the first instance. — 410 — If the District of Columbia had proceeded in this case to acquire so much as was needed of the plaintiff’s land for the construction of this sewer by the exercise of the right of eminent domain, as it might undoubtedly have been entitled to do, there could be no question of its right to construct and maintain the sewer without further liability to the plaintiff. Inasmuch, as it did not do so, the plaintiff had just ground for complaint. But his true grievance was the taking of the land without just compensation for a necessary public work, and not that the District of Columbia constructed or maintained what to him might have been a nuisance. For this taking the first suit afforded him ample opportunity to recover sufficient compensation. When a public structure of a permanent nature is constructed by the public authority, and in the performance of the work private property is invaded and appropriated without the proper preliminary proceedings that would justify such appropriation, the owner of the property is entitled to his suit for the trespass, and the recovery of adequate damages; but the structure cannot be treated as a continuing nuisance, and one recovery will bar all subsequent suits and must be considered as the equivalent of what would have been awarded in the first instance as damages under condemnation proceedings. Fowle v. Railroad Co., 112 Mass., 334; Pumpelly v. Green Bay Company, 13 Wallace, 166. The case of N. Y. Elevated Railroad Co. v. Fifth National Bank, 135 U. S., 432, is not antagonistic to this view. It is sufficient in regard to it, so far as it bears on this point, to say that the Supreme Court of the United States, while following the decisions of the courts of the State of New York to the effect that in that State plaintiffs may not in suits at law recover permanent damages on account of permanent structures that operate as nuisances, but only temporary damages as for continuing nuisances, distinctly repudiates this doctrine as being of general application, and holds that it is in opposition to the almost unanimous current of authority in other jurisdictions. — 411 — We are of opinion in the present case that it was error for the trial judge to instruct the jury as he did, that the previous judgment was no bar to the present suit, and that the plain tiff was entitled to recover as for a continuing nuisance. The judgment, therefore, must be reversed, with costs, the verdict set aside, and the cause remanded for a new trial.