If so, the plaintiff was entitled to compensation in this action for all such injury, present or prospective. If, on the other hand, the injury was temporary in its character and capable of being avoided in the future without permanent injury to plaintiff's freehold, the case was one of a continuing nuisance, and damages should have been restricted to the commencement of the action.

There is some discussion in the briefs of the law of avoidable consequences as applied to the case. The court properly refused to instruct the jury that there could be no recovery because plaintiff had not endeavored to procure 673 a good well upon his premises. His failure to do so would not be a defense to the action, but would go in mitigation of damages, provided the jury should find that by making another well the injury could be avoided, and it is for the same reason that the plaintiff would be entitled to recover any reasonable expenses he might have incurred in an effort to purify the old well or obtain a new one.

For the errors referred to the judgment must be reversed and the cause remanded.

EVERY ONE MUST SO USE HIS OWN PROPERTY as not to hurt another: Fish v. Dodge, 4 Denio, 311; 47 Am. Dec. 254. No man can so use his property as to create a nuisance, or have property which is a nuisance where it is situated: State v. Yopp, 97 N. C. 477; 2 Am. St. Rep. 305.

NUISANCE SUBTERRANEAN OR PERCOLATING WATERS - POLLUTION THEREOF SCIENTER-DAMAGES.-Percolating water belongs to the realty in which it is found: See monographic note to Wheatley v. Baugh, 64 Am. Dec. 727, treating of subterranean or percolating waters. But the owner of the soil has no rights in subsurface waters not running in welldefined channels, as against their neighbors, who may withdraw them by wells or other excavations: See note to Kingsbury v. Flowers, 39 Am. Rep. 17. Unless the injury is caused by malice it is damnum absque injuria; Williams v. Ladew, 161 Pa. St. 283; 41 Am. St. Rep. 891; note to Swell v. Cutts, 9 Am. Rep. 284. The owner may cut drains or mine or quarry, though in so doing he interferes with the flowage of water in hidden, un. known, underground channels: See note to People's Gas Co. v. Tyner, 31 Am. St. Rep. 438. He is liable, however, for polluting or fouling waters which percolate and pass from his land to premises adjoining: See note to Wheatley v. Baugh, 64 Am. Dec. 729. Hence, if the owner of land or his tenant erects a warehouse, and places and keeps coal oil therein, which, leaking from the casks, saturates the ground, and pollutes a subterranean stream from which a spring on the land of an adjacent proprietor is fed, the latter may maintain an action for damages thus suffered by him, though the owner did not know of the injury which the percolation of the oil was doing to the spring: Kinnaird v. Standard Oil Co., 89 Ky. 468; 25 Am. St. Rep. 545 and note.

NUISANCE-RECOVERY OF DAMAGES FOR IN ONE ACTION.—If nui. sances are of a permanent character a single recovery may be had for the whole damages, both present and prospective, resulting from the act: See note to Hodge v. Shaw, 39 Am. St. Rep. 295; Joseph Schlitz Brewing Co. v. Compton, 142 Ill. 511; 34 Am. St. Rep. 92, and note; but if not of a permanent character, damages can be recovered only for the injury sustained up to the time of the commencement of the action: Denver City Irr. etc. Co. v. Middaugh, 12 Col. 434; 13 Am. St. Rep. 234; note to St. Louis etc. Ry. v. Biggs, 20 Am. St. Rep. 177. This rule applies to an action for polluting a spring by suffering coal oil to percolate into an underground stream from which the spring is fed: Kinnaird v. Standard Oil Co., 89 Ky. 468; 25 Am. St. Rep. 545.

GULICK V. WEBB.

[41 NEBRASKA, 706.]

QUESTIONS OF LAW NOT ARGUED IN THE SUPREME COURT ARE DEEMED TO BE WAIVED.

JUDICIAL SALES-VALIDITY OF AGREEMENT TO MAKE JOINT BID.-An agreement to make a joint bid at a judicial sale, although it may indi. rectly have the effect of keeping others from bidding, is not illegal unless it is intended to avoid competition. Hence, in the absence of any fraudulent or illegal intent or purpose, an agreement whereby one of several persons is authorized to bid for their common benefit on property about to be sold at sheriff's sale is not invalid. JUDICIAL SALES-COMBINATION TO MAKE JOINT BID. - A combination between several persons holding liens against real property sold at sheriff's sale, no one of whom is able financially to bid individually at such sale, whereby one of such persons, by attorney, bids in the property for himself and the other lienholders, is not forbidden or contrary to law, and does not vitiate the sale. JUDICIAL SALES-SALE TO COMBINED BIDDERS WILL BE UPHELD, WHEN.— A judicial sale to an association of persons formed for an honest purpose and with an honest intent, not with a view of stifling competition as to bids, but to enable them to compete where, without combining, they could not do so, will be upheld and completed.

W. Henry Smith, for the appellants.

Stevens, Love & Cochran, for the appellee.

708 HARRISON, J. As the result of an action in the district court of Lancaster county to foreclose certain mechanics' and mortgage liens, the property proceeded against, to wit, lots Nos. 7 and 8, in block No. 315, of Jane Y. Irwine's addition to the city of Lincoln, otherwise known as subdivision 62 of S. W. Little's subdivision of the west half of the southwest quarter of section 24, in township 10 north, range 6 east of the sixth parallel meridian, in the city of Lincoln, Ne

braska, was sold by the sheriff of said county under and by virtue of an order of sale issued in accordance with the terms of a decree rendered in the suit. The sale was made on the sixteenth day of February, 1892, to William H. Tyler, for the sum of thirteen thousand dollars, which was more than two-thirds of the appraised value. To the confirmation of the sale objections were filed by George E. Bigelow, as follows:

"Comes now the defendant George E. Bigelow, and shows and represents to the court that he is the owner of 709 the equity of redemption in and to the property described in plaintiff's petition in the above-entitled cause, and in the several answers and cross-petitions of the defendants therein, and objects and protests against the confirmation of the sale heretofore made by the sheriff of the said premises described in said petition, for the following reasons, to wit:

"1. That said premises were not appraised in accordance to the laws of the state of Nebraska; that they were not appraised at their real value in money, but were appraised at a sum far below and vastly less than their real value in money.

"2. That there was a confederation and combination on the part of the judgment lienholders in this cause to bid said property in at a certain sum far less than its value and far less than two-thirds of its real value in money, and that by said combination and confederation, so formed and entered into by the said judgment lienholders, purchasers were prevented from bidding at said sale, and said property was prevented from selling for a sum equal to what it would have brought had such confederation and combination not been formed; that said confederation and combination so formed prevented competition in bidding at the sale of said property, and prevented purchasers from bidding thereon, and was in fraud of the rights of the owner of the equity of redemption of said premises; and if said sale is confirmed and allowed to stand, it will work great and permanent loss and injury to this defendant.

"This defendant therefore moves the court that said sale be not confirmed, but that the same be set aside and held of no force or effect."

Subsequently additional objections were filed by D. T. Coffman and George E. Bigelow, as follows:

"And now, February 23, 1892, come the above-named

AM. ST. KEP., VOL XLIIL —46

parties and by leave, etc., file the following objections and protests against the confirmation of the sheriff's sale, etc: 7101. The property was not properly appraised, as appears by appraisement filed.

"2. No proper return of sale was made by the sheriff, as required by law, prior to the first order of confirmation.

"3. No proper notice was posted in the sheriff's office, as is the custom of law prior to sale.

"4. The property was not properly described in the newspaper publication, as per affidavits of D. T. Coffman and George E. Bigelow, filed herewith and made a part hereof, in that it was not sufficiently identified and located, nor was it sufficiently described by improvement, so as to distinguish or identify it or to attract bidders or to assure them that the improvements belonged to the property.

"5. An unlawful combination was entered into by several of the claimants and lien creditors to prevent competition at the bidding or crying of the sale, and that such combination was carried out and rival bidding was prevented, to the injury of the defendant and certain of the creditors.

"6. The property was sold at a grossly inadequate price, far below what it would have brought had not an unlawful combination been entered into to prevent bidding, and to cause it to be sold at a sacrifice and to the injury of the defendants Coffman and to the second mortgage creditor, George E. Bigelow.

"7. The description of the property in the published advertisement was inadequate, vague, and uncertain, and calculated to mislead purchasers.

8. The liens in the district court, Lancaster county, Nebraska, against the property sold were not properly certi fied to the sheriff. Witness the certificate, made a part hereof, under date of February 15, 1892.

9. The sale was contrary to law."

Upon a hearing in the district court the objections to con firmation were overruled and the sale confirmed, to which action of the court the parties objecting duly excepted and 711 have removed the case to this court for an examination and adjudication upon the question of the confirmation of the sale.

Counsel for appellants in his brief filed in this court argues but one of the grounds of objection to confirmation of the sale, and, conforming to a well-established rule that ques

tions not argued here will be deemed to be waived, we conclude that he rests the case upon the one ground alone and has abandoned all others. The objection, then, upon which the appellants rely is as follows: "An unlawful combination was entered into by certain of the claimants and lienholders to prevent competition at the bidding or crying of the sale; that such combination was carried out, and rival bidding was prevented, to the injury of the defendant and certain of the creditors." The evidence (which consists of affidavits of various persons) discloses that five of the lienholders, whose liens were of the liens foreclosed in the action, no one of them being of sufficient financial ability to purchase the property, entered into an agreement or combination to the effect that one of their number, William Tyler, was to bid at the sale in behalf of all the five lienholders and bid until the amount offered for the premises would equal the mortgage liens of one Gulick, which was prior to the liens of the five who entered into the agreement, and eighty per cent of the aggre gate amount of their liens. A careful reading and analysis of all the evidence contained in the affidavits presented and used during the hearing in the district court, as preserved in the bill of exceptions and record filed in this court, satisfies us that the judge who rendered the decision and confirmed the sale was fully warranted in the conclusion which he evidently formed as a basis for the disposition made of the matters in controversy, that the agreement between the five lienholders was one by which they combined to jointly purchase the property for their common benefit, and not an agreement not to bid or to 712 avoid competition or to deter others from bidding or competing at the sale; that in so combining they had no fraudulent or illegal intent or purpose. This being established, then, the question arises whether such an agreement is forbidden by or is contrary to law, and sufficient to set aside the sale to the trustees acting or bidding for the parties to such contract. We have no doubt that in the earlier cases in which this question arose and was decided some courts of high authority have announced a doctrine which would avoid this sale solely upon the grounds of the formation of such an association, regardless of the intent or motives of the parties, assigning as a reason that its necessary and unavoidable effect is to tend to discourage or prevent competition; but the later cases have in effect overruled the above doctrine, and established what we consider a