of 30 miles per hour?" Objection that this was not cross-examination was sustained. The plaintiff had not asked, so far as the brief discloses, anything on this subject. The chief object in calling the witness was to show his knowledge of the presence of the buggy and his distance from it when he first saw it. We doubt whether this was proper cross-examination, but, if it was, no harm justifying a reversal results from the ruling. The witness was then the defendant's motorman. The court may in its discretion have deemed it best to confine the cross-examination within narrow limits. The defendant could have avoided the harm, if any, by adopting the witness or calling him in defense, neither of which the defendant did. [10] Appellant asserts that its motion for a new trial should be sustained because of the court's refusal to strike out the words to a question as to whether the injury would permanently affect plaintiff's nervous system. The basis of the motion was that the answer was speculative, An expert may answer such a question. One not specially learned cannot know, or intelligently answer, as to such matter. One specially learned cannot in many cases be positive, and can only express a general conclusion in indefinite terms. The doctor was the one to know how definite the answer could truthfully be made. Such an answer by one so skilled is not speculative. It is true there is little positive or direct "it might" from the answer of Dr. Combs evidence relating to these allegations. The motorman admits that he saw the buggy traveling the parallel road when he was 800 or 900 feet from the crossing, and that he saw the horse turn into the curve to the private drive leading to the crossing. He testifies that the horse was trotting when he first saw it, and there was testimony that it continued to trot after turning until it reached the crossing. The evidence is undisputed that the distance from the traveled portion of the highway to the track, measured with the curve of the private driveway, is not more than 60 feet. The appellee testified that she knew nothing of the car until her horse was on the crossing. The jury might reasonably infer that one allowing the horse to trot the entire 60 feet on the drive that led only to the crossing did not know of the approach of the car, and might also reasonably have inferred that, as the motorman saw the vehicle so approaching the track, and saw no act indicating that the horse's movement would be checked, he did know that the occupants of the buggy were probably unaware of the car's approach, and would enter upon the crossing. It is not necessary that the plaintiff prove that the motorman knew the state of her mind. It is only necessary that such facts and circumstances be shown as would cause a reasonably prudent person to apprehend or realize that she probably did not know of her peril, and that the peril would continue. Proof of such facts and circumstances is permissible under the allegation that he knew that she did not know. Considering these undisputed facts, and all the other evidence and circumstances before the jury, we cannot say that the evidence was insufficient. [9] The witness McClain, motorman, called as witness by the plaintiff, was asked on cross-examination, "How far it takes to stop this car when it is going at the rate and realized, [11] Instruction No. 8, given, is criticized because it is said to omit the element of actual knowledge of the motorman as to plaintiff's peril, and renders the defendant liable in this case if the motorman failed to use ordinary care to discover it. We do not so read the instruction. It says, "If * the motorman saw or should have realized, the peril," it was his duty, etc. Knowledge of the peril made it his duty to realize. His failure to realize after discovery is the negligence. On this point the instruction is supported by Evansville, etc., Traction Co. v. Johnson, 54 Ind. App. 601, 608, 609, 97 N. E. 176. The trial court repeatedly informed the jury that knowledge of the danger was necessary, and that the theory of the complaint would not support a verdict if the jury found only that the motorman should have discovered or known of the danger. The above observations also answer appellant's objection on similar grounds to instruc. tion No. 20. Further complaint is made of instruction No. 8 because it tells the jury that it was the duty of the motorman "to have used every reasonable means to have avoided" the collision. [12] While we do not approve the use of the terms "every reasonable means" in this connection, we are of opinion that, when (123 N.E.) said words are considered with other instruc- [ 3. ACTION 53(2)-PERMANENT INJURY, tions to the effect that such care as a reasonably prudent person would use under like circumstances measures the motorman's obligation, there was no reversible error. The words "reasonable means" may be fairly construed, and must have been understood by the jury, to mean such means as a reasonably prudent person would use under like circumstances. Where damages to land are caused by a single completed wrongful act resulting in an injury, the effects of which will continue indefinitely, the damages occasioned by such injury must be compensated in a single award, as there is no continuing wrong on which to base [13] Complaint is made of instruction No. 22 because it omitted to limit the amount of damages to the showing made by the evidence of the extent of the injury and suffering. This limitation is not expressly stated in this instruction, but, as other instructions informed the jury that their verdict must rest on the évidence and the law as stated, the omission does not justify a reversal. [14] Complaint is made of the giving and refusal to give of other instructions. We have considered all such complaints. Many of such objections are based upon alleged omissions of what we find to be single elements fully covered by other instructions. Some are asserted to be assumptions invading the province of the jury; but the instructions as a whole show that the court submitted the matter of such alleged assump tions to the jury in other instructions. In view of the very full instructions given, and the fact that they carefully limited the case submitted to the specific case made by the complaint, we cannot see that the defendant was harmed. The judgment is affirmed. (188 Ind. 400) INDIANA PIPE LINE CO. v. CHRISTEN- (Supreme Court of Indiana. June 27, 1919.) 1. JUDGMENT 606 NUISANCE 50(3) -DAMAGES-CONTINUING NUISANCE. In case of continuing abatable nuisance, damages can be recovered only to the date of the action, as there is a presumption that the cause which produces the damages will be removed by the abatement of nuisance; but if the nuisance is not abated, successive actions may be maintained so long as it is permitted to continue, in which damages may be recovered for all injury occasioned prior to the commencement of the action and within the statute of limitations, not extending back of a former re covery. 2. NUISANCE ING NUISANCE. successive actions. . 4. DAMAGES INJURY. 110-MEASURE-PERMANENT Where a portion of land is permanently appropriated by wrongful act, or where it so occupied as to deprive the owner permanently of the occupation or use of the portion of his land, the general rule as to measure of damages is the depreciation in the market value of the land occasioned by the appropriation or trespass. 5. TRESPASS 20(3) TRESPASS QUARE 6. TRESPASS 50-TRESPASS QUARE Claus UM FREGIT-ACTION-RIGHT TO MAINTAIN. In an action of trespass quare clausum frethat he was in possession of the land, and that git it is only necessary for plaintiff to prove defendant entered thereupon without right, such proof entitling plaintiff to recover at least nominal damages, without any proof of injury, and on proof of injury to products of the soil plaintiff may recover compensatory damages. 7. ACTION ON THE CASE 1-INJURIES TO RIPARIAN OWNER'S LAND BY POLLUTION OF STREAM. Under the common-law forms of pleading, trespass on the case is the proper remedy for injuries to the soil and products, occasioned by the escaping of oil carried by the waters of a creek and deposited on land. 8. ACTION 32-FORMS OF ACTION-COMMON-LAW RULES. The common-law forms of action are abolished, but the rules of common law are not abrogated, and they obtain in civil actions under the Code, whenever applicable to facts pleaded and proved. 9. TRESPASS 27-TRESPASS ON THE CASEACTIONS-DEFENSE. As a wrongdoer who injures land, as by allowing oil to escape from its pipe line, which was carried by the waters of the stream onto the premises, can be compelled to pay only a single compensation, such a wrongdoer, when sued for the injury to the freehold by one in possession, may set up that there was a valid outstanding title in another. 50(1)-DAMAGES-CONTINU- 10. TRESPASS 46(2) TRESPASS ON THE In case of continuing abatable nuisance, whereby injury to products of soil is caused, the measure of damages is the depreciation in the rental value of the real estate affected. CASE-ACTIONS-DEFENSE. Proof that plaintiff was in entire possession of the large farm he claimed will make a prima facie case of title against an oil company, from whose pipe line crude oil escaped, which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was deposited on the farm by the waters of a, pellee's complaint alleges among other things creek. 11. TRESPASS 46(2) TRESPASS ON THE CASE-ACTIONS-DEFENSE. In action by one in possession and claiming to own a farm against an oil company, from whose pipe line oil escaped, which was carried by the waters of a creek onto the land, a prima facie case made out by possession can be rebutted only by a showing that the true record title was not in the one suing. 12. ACTION 53(2) DAMAGES 225 MEASURE-SUCCESSIVE ACTIONS. In an action by plaintiff, on whose farm oil which escaped from defendant's pipe line was deposited by the waters of a creek, held that, under the pleadings and evidence, the recovery, on account of injury to land, must be limited to damages resulting to the land from the oil which had been permitted to flow thereon prior to the commencement of the action, and the entire damage must be recovered in the single action, there being no claim by plaintiff that the oil company had in any wise appropriated any part of his property. 13. APPEAL AND ERROR -VERDICT. 1004(1)-REVIEW Where it appears from the record that a verdict is based on improper items of damages, the verdict will be held to be excessive, and new trial will be awarded. 14. DAMAGES 138-PERMANENT INJURYEVIDENCE. In an action by landowner, whose farm was injured by oil escaping from defendant's pipe line, which was carried onto the premises by the waters of a creek, held that, though some of his stock were injured or killed by eating grass or drinking water contaminated with oil, an award of $17,000 must be deemed excessive, in the absence of evidence showing that the oil, which killed vegetation permanently, destroyed the fertility of the soil, for it is obvious the award must have been made on that theory. that he is the owner of 700 acres of land in Stark county, Ind., which he has used for the past 20 years for the combined purposes of general farming and stock-raising, and which is located on both sides of Pine creek below the point where Pine creek is crossed by appellant's pipe lines, which are used for the purpose of transporting crude petroleum oil across the state of Indiana. It is alleged that appellant negligently, carelessly, and knowingly failed to make any proper inspection of its pipe lines, and knowingly allowed the pipe lines to become disjointed, rotten, decayed, eaten with corrosion, and leaky, so that at divers times during the years 1914, 1915, and 1916 great quantities of crude petroleum oil escaped from appellant's pipe lines and flowed over and upon 500 acres of appellee's land, permeating, saturating, and poisoning the soil. The complaint states, that, by reason of the escape of such oil, the grasses and other vegetation of appellee's lands were destroyed, and the cattle of appellee became sick and died from the effects of the oil on the grass and in the water which they drank. It is also alleged that the use of the entire 700-acre tract was impaired by reason of the destruction of the productive qualities of the 500 acres. A trial by jury resulted in a verdict and juugment in favor of appellee for the sum of $17,000. [1, 2] The controlling question presented by the several assignments of error relates to the measure of damages applicable to a case of the kind here presented. Appellant asserts that the evidence shows only an injury to the products of the soil by a contiquing abatable nuisance and insists on the rule of damages applicable in such cases. In cases of this character damages can be recovered only to the date of the action, as there is a presumption that the cause which produces the damage will be removed by an Appeal from Circuit Court, La Porte Coun- abatement of the nuisance. If the nuisance ty; James F. Gallaher, Judge. Action by Christian Christensen against the Indiana Pipe Line Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with direction to sustain defendant's motion for new trial. is not abated, its continuance, resulting in a damage, is a new and separate injury, which gives rise to a new cause of action. Successive actions may be maintained so long as the nuisance is permitted to continue, in which damages may be recovered for all injury occasioned prior to the commencement of the action and within the statute of limi H. D. Bushnell, Holman, Bernetha & Bryant, of Rochester, Simmons & Daily, of Bluff-tations, not extending back of a former reton, and Myers, Gates & Ralston, of Indianapolis, for appellant. George Burson, of Wenamac, Darrow & Rawley, of La Porte, and Francis M. Trissal, of San Pierre, for appellee. covery. The measure of damages in such a case is the depreciation in the rental value of the real estate affected. Cleveland, etc., R. Co. v. King (1900) 23 Ind. App. 573, 55 N. E. 875; Vandalia R. Co. v. Yeager (1915) 60 Ind. App. 118, 130, 110 N. E. 230. [3] The rule stated applies to a tort of a continuous nature. By that is meant a wrongful act which produces a state of affairs, the continuance of which constitutes LAIRY, C. J. This was an action to recover damages for the loss of cattle and the permanent injury to the 700-acre farm of appellee, Christian Christensen, occasioned by the escape of oil from the pipe line of a new wrong each moment; but it does not appellant, Indiana Pipe Line Company. Ap-apply to a single completed wrongful act re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) sulting in an injury, the effects of which will remainder consisted of higher land, on which continue indefinitely. The damages occa- the buildings were situated. There is no evisioned by such an injury must be entirely dence that the high land was affected by the compensated in a single award, as there is oil, but there is evidence to show that oil no continuing wrong on which to base suc- was found in considerable quantities on porcessive actions. The award covers all re- tions of the low land, and that it permeated sulting damages, both past and prospective. the soil and was found on the grass and City of Lafayette v. Nagle (1887) 113 Ind. vegetation growing thereon. The evidence 425, 15 N. E. 1; Porter v. Midland R. Co. shows that the low land prior to the overflow (1890) 125 Ind. 476, 25 N. E. 556. produced native perennial grasses, which were valuable for pasturage and for hay, and that, in the years following the floods and before the trial, which began on the 28th day of September, 1916, portions of the land on which this grass had previously grown failed to produce the grass, being covered by weeds instead. As disclosed by the evidence, the land had been previously used for a stock farm, the low lands being utilized as meadow and as pasture for the cattle, and the buildings constructed on the higher land being of a size and character suitable for the storage of feed and the shelter of stock. There can be no doubt that it was the theory of the plaintiff below that the injury to the real estate was of a permanent character, affecting the value of the farm as a whole, and that the trial court adopted that theory on the trial. [4] Where a portion of the land is permanently appropriated, or where it is so occupied as to deprive the owner permanently of the occupation or use of a portion of his land, the general rule as to the measure of damages is the depreciation in the market value of the land occasioned by the appropriation or trespass. In the case of Indiana, etc., R. Co. v. Eberle (1886) 110 Ind. 542, 11 N. E. 467, 59 Am. Rep. 225. Judge Mitchell, speaking for the court, said: "Whether the plaintiff may recover for the permanent depreciation in the value of his property depends upon the permanent character of the injury and the frame of the action. Where the character of the injury is permanent, and the complaint for damages recognizes the right of the defendant to continue in the use of the property wrongfully appropriated, and to acquire, as a result of the suit, the plaintiff's title to the right appropriated, we can see no reason why the damages may not be assessed on the basis of the permanent depreciation in value of the property injured, as in Henderson v. New York, etc., R. Co., 78 N. Y. 423; Lohr v. Metropolitan Ele. R. R. Co. [104 N. Y. 268], 10 N. E. 528; Wichita, etc., R. Co. v. Flechheimer [36 Kan. 45], 12 Pac. 362; Wood, Nuisances, § 856; City of North Vernon v. Voegler, 103 Ind. 314 [2 N. E. 821]." Appellant takes the position that, under the law and the evidence, appellee was not entitled to recover permanent damages to the farm as a whole, measured by the diminution in the market value of the fee-simple interest therein, for the reason that the evidence fails to show any title in appellee as to that portion of the farm lying north of the meander line established by the government survey and containing about 192 acres. It is asserted that appellee was required un In the case at bar the court adopted the measure of damages applicable to the as-der the law to prove title to the land affected, sessment of damages for lands appropriated. and that the evidence shows that the title to Evidence was admitted as to the market the part of the farm on which the buildings value of the entire 700-acre tract of land are located north of the meander line in secimmediately before it was overflowed by the tion 36 rests in the state of Indiana or in oil which escaped from defendant's pipe the government of the United States. This lines and the value of the same land after position of appellant is met by appellee with such overflow; and, under the instructions, the proposition that a person who is in posthe jury was permitted to base its award of session of land claiming to be the owner may damages on evidence of this character. Ap- maintain an action against a wrongdoer for pellant asserts the trial court erred in apply-permanent injury to the land without dising this rule for the assessment of damages | closing anything further than his possession to the facts as disclosed by the evidence in this case. and claim of ownership; and that such wrongdoer cannot set up an outstanding title in There is evidence to show that in the years a third party for the purpose of defeating a 1914, 1915, and 1916 quantities of oil es- recovery. As sustaining this proposition, apcaped from the pipe lines owned and oper- pellee cites several authorities which he ated by appellant company and was carried claims to be in point: Bristol H. Co. v. 'Boyer on the surface of the water down the ditches (1879) 67 Ind. 236; Ohio, etc., R. Co. v. Trapp constructed through lands owned by appel- (1891) 4 Ind. App. 69, 30 N. E. 812; Clevelee, and that, by reason of the water over-land, etc., R. Co. v. Born (1911) 49 Ind. App. flowing the lands of appellee, the oil was 62, 96 N. E. 777; Barber v. Barber (1863) 21 carried on and over parts of said land, where Ind. 468; Winship v. Clendenning (1865) 24 it remained on the grass and vegetation and Ind. 439. in the soil after the water receded or evaporated. A part of the land, having an area of about 500 acres, was prairie land, and the Appellant cites a number of cases to sustain the proposition that it is necessary for the plaintiff to prove title to the land in cases plaintiff, would of necessity be applicable in the latter form of action. The common-law forms of action are abolished in this state, but the rules of common law are not abrogated. These rules obtain in civil actions under our Code, whenever applicable to the facts pleaded and proved. where he seeks to recover damages for per- [ on injuries affecting the possessory rights of manent injury to the freehold. Thompson v. Norton (1860) 14 Ind. 187; Broker v. Scobey (1877) 56 Ind. 588; Start v. Clegg (1882) 83 Ind. 78; Lafayette v. Wortman (1886) 107 Ind. 404, 8 N. E. 277; Burrow v. Terre Haute (1886) 107 Ind. 432, 8 N. E. 167; Porter v. Midland Co. (1890) 125 Ind. 476, 25 N. E. 556. [5] The cases cited have been of no material assistance to the court. The foundation of the action quare clausum fregit is the breaking by defendant of plaintiff's close. Its purpose is to recover damages for an invasion of the plaintiff's right of possession, and it can be maintained by a person in posses-permanent nature to his interest and estate sion having no interest in the soil, but an interest in the profits only. Darling v. Kelly (1873) 113 Mass. 29. [6] In such an action it is only necessary for plaintiff to prove that he was in possession of the land and that the defendant entered thereon without right. Such proof entitled the plaintiff to recover nominal damages. The cases cited by appellee hold that in such cases plaintiff need not prove title, proof of possession being sufficient, and that a defendant cannot prove title in another to defeat the action. It is well settled that one rightfully in possession may maintain an action against one who wrongfully invades his possession, even though it be the owner of the fee-simple interest in the land. He may recover nominal damages without proof of injury, and on proof of injury to the products of the soil he may recover actual possessory damages. An examination of the cases cited by appellee will show only such damages were proved and allowed as affected the plaintiff's possessory rights. [9, 10] Appellant in this case proceeds on the theory that he is the owner in possession of the 700 acres of land described in his complaint, and he seeks to recover damages for injury to his personal property, to the products of the soil, and also for injury of a in the land itself. If he had pleaded and proved damages only to his possessory rights, there could be no doubt that proof of possession would be sufficient to entitle him to recover damages of that nature; but the damage recovered, as shown by the evidence, the instructions, and the verdict, was the diminution of the market value of the fee-simple interest in the whole tract of land described. The court is required to determine whether damages of this kind can be recovered by plaintiff on proof of mere possession or whether it is necessary for him to prove his interest in the land in order to entitle him to recover damages of a permanent nature. It may be that proof of possession being prima facie evidence of ownership would be sufficient to make a prima facie case in favor of plaintiff. Can the defendant rebut the prima facie case so made by evidence showing the true state of the title and thus disclose title in a third person? It is said that the defendant, having no interest in such a title, cannot be permitted to set up or assert it against the plaintiff. The purpose of such evidence is not to establish or enforce an outstanding title against plaintiff in such a way as to affect his title or interest in the land as between him and the owner of such outstanding title. The purpose of such evidence is to rebut the prima facie case of ownership made by plaintiff, and to show that the damages which he seeks to recover for permanent injury to the freehold did not accrue to him on account of his interest in the land, but that such damages accrued in favor of another on account of his interest therein. It is true that the defendant can have no interest in having an outstanding title enforced against the plaintiff, but when he is called on to make com[7, 8] Under the common-law forms of pensation for an injury of such a nature as pleading, an injury such as is here described to affect and reduce the value of the feecould not have been redressed in an action simple estate in the land, he has an interest quare clausum, because the damages were in having the court determine whether plainnot the direct result of force, but resulted tiff, by reason of his interest in the land, is indirectly from the wrongful act of the de- entitled to recover for the injury claimed. fendant. The proper form of action would If this question cannot be presented by a have been trespass on the case; but the rule defendant, he may be required to make comof law which required only proof of posses-pensation for an injury which materially sion, where the damages sought were based diminished the market value of the fee The cases cited by appellant do not sustain the position to which they are directed. They do not hold that it is necessary for plaintiff, in an action quare clausum, to prove a fee-simple title to the land. They hold that it is only necessary to prove possession either actual or constructive. If actual possession cannot be shown, constructive possession must be proven. In these cases actual possession was not shown, and proof of constructive possession follows the title. It was held to be necessary to show a chain of transfers extending back to the government, or to a person in possession at the time of his transfer, not for the purpose of proving title, but for the purpose of proving possession. |