framed with reference to some popular expressions of the sort, but for the sake of preventing an abuse of substantial justice. Two separate kinds of injury were in fact inflicted, and two wrongs done. The mere negligent driving in itself, if accompanied by no injury to the plaintiff, was not actionable at all, for it was not a wrongful act at all till a wrong arose out of the damage which it caused. One wrong was done as soon as the plaintiff's enjoyment of his property was substantially interfered with. A further wrong arose as soon as the driving also caused injury to the plaintiff's person. Both causes of action, in one sense, may be said to be founded upon one act of the defendant's servant; but they are not on that account identical causes of action. The wrong consists in the damage done without lawful excuse, not the act of driving, which (if no damage has ensued) would have been legally unimportant. It certainly would appear unsatisfactory to hold that damage done in a carriage accident to a man's portmanteau was the same injury as the damage done to his spine, or that an action under Lord Campbell's Act by the widow and children of a person who has been killed in a railway collision, is barred by proof that the deceased recovered in his lifetime for the damage done to his luggage. It may be said that it would be convenient to force persons to sue for all their grievances at once, and not to split their demands; but there is no positive law (except so far at the County Court Acts have from a very early date dealt with the matter,) against splitting demands. which are essentially separable (see Seddon v. Tutop 1), although the High Court has inherent power to prevent vexation or oppression, and by staying proceedings or by apportioning the costs, would have always ample means of preventing any injustice arising out of the reckless use of legal procedure. . . . The judgment of the Queen's Bench Division ought to be reversed, and the judgment entered at the trial for the plaintiff be restored with costs to the plaintiff, including the costs below and of this appeal. Lord COLERIDGE, C. J. In this case I am with much regret unable to concur in the judgment of my brother BoWEN, to which I understand the Master of the Rolls to assent. I should have been glad, in the face of this difference of opinion, to have given reasons at length for my inability to agree in the judgment. But the plaintiff very naturally presses for judgment, and I am unable to do more than shortly to express my dissent. It appears to me that whether the negligence of the servant or the impact of the vehicle which the servant drove, be the technical cause of the action, equally the cause is one and the same. That the injury done to the plaintiff is injury done to him at one and the same moment by one and the same act in respect of different rights, i. e. his person and his goods, I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions, if he is injured in his arm and in his leg, but can bring two, 1 6 T. R. 607. if, besides his arm and leg being injured, his trousers which contain his leg, and his coat-sleeve which contains his arm, have been torn. The consequences of holding this are so serious, and may be very probably so oppressive, that I at least must respectfully dissent from a judgment which establishes it. I think that the Court below was right, and that this appeal should be dismissed. Judgment reversed. 540. REILLY v. SICILIAN ASPHALT PAVING COMPANY. (1902. 170 N. Y. 40; 62 N. E. 772.) Cullen, J.: The appellant claimed that while driving in Central Park, in the city of New York, both his person and his vehicle were injured in consequence of collision with a gravel heap placed on the road through the negligence of the defendant. Thereupon he brought an action against the defendant in the Court of Common Pleas to recover damages for the injury to his person. Subsequently he brought another action in one of the District Courts in the city of New York to recover for the injury to his vehicle. In his last action he obtained judgment, which was paid by the defendant. Thereafter the defendant set up by supplemental answer the judgment in the District Court suit and its satisfaction, as a bar to the further maintenance of the action in the Common Pleas. . . . The question now before us has been the subject of conflicting decisions in different jurisdictions. In England it has been held by the Court of Appeal, Lord Coleridge, Chief Justice, dissenting, that damages to the person and to property, though occasioned by the same wrongful act, give rise to different causes of action (Brunsden v. Humphrey, L. R. 14 Q. B. D. 141); while in Massachusetts, Minnesota, and Missouri the contrary doctrine has been declared. (Doran v. Cohen, 147 Mass. 342; King v. Chicago, M. & St. P. Ry. Co., 82 N. W. Rep. 1113; Von Fragstein v. Windler, 2 Mo. App. 598.) The argument of those Courts which maintain that an injury to person and property creates but a single cause of action is that as the defendant's wrongful act was single, the cause of action must be single, and that the different injuries occasioned by it are merely items of damage proceeding from the same wrong; while that of the English Court is that the negligent act of the defendant in itself constitutes no cause of action, and becomes an actionable wrong only out of the damage which it causes. "One wrong was done as soon as the plaintiff's enjoyment of his property was substantially interfered with. A further wrong arose as soon as the driving also caused injury to the plaintiff's person." (Brunsden v. Humphrey, supra.) I doubt whether either argument is conclusive. If, where one person was driving the vehicle of another, both the driver and the vehicle were injured, there can be no doubt that two causes of action would arise, one in favor of the person injured and the other in favor of the owner of the injured property. On the other hand, if both the horse and the vehicle, being the property of the same person, were injured, there would be but a single cause of action for the damage of both. If, while injury to the horse and vehicle of a person gives rise to but a single cause of action, injury to the vehicle and its owner gives rise to two causes of action, it must be because there is an essential difference between an injury to the person and an injury to property that makes it impracticable or, at least, very inconvenient in the administration of justice to blend the two. We think there is such a distinction. Different periods of limitation apply. The plaintiff's action for personal injuries is barred by the lapse of three years; that for injury to the property not till the lapse of six years. The plaintiff cannot assign his right of action for the injury to his per son, and it would abate and be lost by his death before a recovery of a verdict, and if the defendant were a natural person, also by his death before that time. On the other hand, the right of action for injury to property is assignable and would survive the death of either party. . . . Therefore, for reason of the great difference between the rules of law applicable to injuries of the person and those relating to injuries to property, we conclude that an injury to person and one to property, though resulting from the same tortious act, constitute different causes of action. 541. NATIONAL COPPER COMPANY v. MINNESOTA MINING COMPANY SUPREME COURT OF MICHIGAN. 57 Mich. 83 1885 ERROR to Ontonagon. (Williams, J.) April 28-9. June 3. T. L. Chadbourne, for appellant. In trespass the unlawful invasion is the injury and cause of action; its consequences are merely elements of damage. . . A nuisance as distinguished from a trespass is something not per se harmful which does injury: Wood on Nuisances 1, 20; but there can be only one recovery for continuing nuisances, where the continuance itself is an injury. Chandler, Grant & Gray and G. V. N. Lothrop, for appellee, as to what are successive trespasses constituting fresh causes of action. COOLEY, C. J. This is an action of trespass. The following is a statement of the case, as made for the plaintiff, for the argument in this Court: "The plaintiff and defendant are corporations, which for twenty-five years and more have been engaged in copper mining in Ontonagon county. Their mines adjoin each other. Each owns the land in fee on which its mine is situated. The plaintiff, in carrying on its mining operation, left a wall of rock, from fifteen to eighteen feet thick, next to the boundary line of defendant's mine. This was left as a barrier and protection to its mine against water or other encroachments from the Minnesota. The Minnesota, [the defendant mine,] left no such barrier; it not only worked up to the boundary line, but broke through into defendant's mine. About the year 1866, the plaintiff, at about forty feet above its fourth level, and from twenty-five feet from the boundary line, drilled a hole, of the ordinary size, about one and one-half inches in diameter, and when the blast was fired it blew through into the opening which had been previously made by the defendant into the plaintiff's territory. The drill-hole was left through from two to two and one-half feet of solid rock. Capt. Chynoweth, then the agent of plaintiff, examined this hole and the surroundings. and immediately gave orders to cease work there. This was done as a further protection against the defendant. No work was done [by the plaintiff] at this point after that until the winter of 1883-4. The plaintiff had no knowledge of any further trespass at this point until February, 1884, under the circumstances related hereafter.1 About 1870 the defendant concluded to abandon regular mining, stopped its pumps, . . . took out the supports of the roof of the mine, and allowed it to settle or cave in. . . . The result was that the surface of the ground became depressed, and openings were made in it. . . . Into these openings the water from rains and melting snow ran into the defendant's mine, and from thence flowed into the plaintiff's mine through the opening at its fourth level. But for these openings the water would have run down the hill-side. As one of defendant's own witnesses expressed it, 'There has been a general falling away of the bluff.' There were no such openings on the surface of the National. In fact, we everywhere find the plaintiff conducting its mining operations with due regard to the rights of adjoining owners; while we find the defendant conducting its operations in the most reckless disregard of such rights. . . . We do not think that the history of mining upon Lake Superior will disclose another instance of such reckless disregard of the rights of an adjoining mine-owner. In May, 1880, the plaintiff resumed mining operations and commenced to pump the water from its mine. The six inch pump, formerly used by the mine, and which had always been adequate to keep the mine unwatered, proved wholly inadequate, and it was compelled to get a twelve inch pump, and even this was not sufficient in the spring; and in 1882 the water gained on them one hundred and twenty feet, and in 1883, two hundred and twenty-two feet, with the pump working night and day. Capt. Parnell, the agent of the plaintiff's mine, was thoroughly acquainted with it, having worked in the mine years before; he soon became convinced that the bulk of the water came from the defendant's mine. He found that the water came from the fourth level. He cleaned out the level, [in 1884], and, on reaching the point where the drill-hole had been made years before, he found that the rock had all been blasted away from the Minnesota side, and that the water was rushing through an opening from twenty to twenty-five feet high and twelve feet wide. When discovered there was a volume of water seven feet wide flowing from the Minnesota into the National. When the defendant made its second encroachment at this point does not clearly appear; according to the defendant's witness Spargo it was in 1871 or 1872. . . . It was not denied in the Court below, and we presume will not be in this Court, that the defendant committed these several acts of trespass. . Furthermore, it is beyond dispute that the defendant knowingly and wilfully committed these acts of trespass, and broke down the 1 [The following paragraphs are slightly transposed from the original report, for clearness' sake.] barrier which the plaintiff had so carefully left to protect its mine for all future time, and against all possible dangers." The above is a sufficient statement of the facts for a discussion of the principal question in the case, viz.: Is the plaintiff's right of action barred by the statute of limitations? The count in the declaration on which the parties went to trial alleged that the defendant, on March 15, 1882, and on divers days and times between that day and the commencement of suit, with force and arms broke down the partition wall between the mine of the plaintiff and the mine of the defendant, and let the water from its said mine into the mine of the plaintiff, and then and there filled the mine of the plaintiff with water, greatly damaging its timbering, workings, walls, and machinery, hindered and prevented the plaintiff from carrying on and transacting its lawful and necessary affairs and business, caused the plaintiff great damage and expense in removing water from its mine, etc. The defendant pleaded the general issue, with notice that the statute of limitations would be relied upon. The plaintiff recovered a large judgment. I. The time limited for the commencement of suit for trespass upon lands in this State is two years from the time the right of action accrues. This action was commenced in May, 1884, and it is not claimed that damages for the original trespass can be recovered in it. The contention of the plaintiff may be succinctly stated as follows: 1. Had the plaintiff instituted suit within two years from the original trespass, the recovery would have been limited to such damages as were the direct and immediate result of the trespass. The subsequent flowage of water through the opening was not the direct, immediate, or necessary result of breaking down the barriers; therefore no damages could have been recovered therefor in an action so brought. 2. Two trespasses may be the result of one act. In other words, one trespass may cause another, and he who commits the wrongful act in such a case will be responsible for both trespasses. 3. In this case no action accrued for the flowage of water into the plaintiff's mine until the flowage actually took place; but when the flowage occurred as a result of defendant's wrongful act it was a trespass, and if it continued from day to day there was continuous trespass for which repeated actions might be maintained. Upon these positions the plaintiff plants its case, and unless they are sound in law the recovery cannot be supported. All right of recovery for the original trespass, which consisted in breaking through into the plaintiff's mine, was long since barred, and it is not claimed. that there was, from the time of the first wrong, a continuous trespass which can give a right of action now. The merely leaving an opening between the two mines is not the wrong for which suit is brought, but it is the flowing of water through the opening which is complained of as a new trespass; the original wrongful act of the defendant in break |