adversely to relator upon the former appeal is an essential element as respects the force of the judgment. The principals were before the court in the former litigation, and when relator seeks mandate to enforce that which it contends was secured to it by that litigation, it can no more impeach the ultimate result than could the owner of property derogate from the terms of a deed under which he claimed. Owing to the declarations of this court in said proceeding, there is a line of cleavage through the judgment of the White circuit court, and relator must abide that result as a part of the fortunes of litigation. This is really but an application of the doctrine of election, which, as Herman states, "is founded upon the principle that there is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent therewith." 2 Estoppel and Res Judicata, 1026. "When you claim under a deed you must claim under the whole deed together. You cannot take one clause and desire the court to shut their eyes against the rest." Wilson v. Townsend, 2 Ves. Jr. 693.

It cannot successfully be contended, as argued, that a writ of mandate should be granted because all interested parties were before the court in the former suit. We cannot create a right where none exists; we cannot conjure an equity out of a statute which is to be strictly construed in favor of the right of private property-a statute which postpones all right in the railroad company until the culminating act of making a donation, and which had been definitely construed before relator sought to make itself the assignee of a claim that it was bound to know that, under the law, it could not collect. It was said by this court, in Board v. Jarnecke, 164 Ind. 658, 664, 74 N. E. 520, 523, that: "The rule is well settled that, where a party seeks to avail himself of a statutory remedy, he must bring himself substantially within the provisions of the act awarding such remedy." Harrison v. Stanton (1896) 146 Ind. 366, 370, 45 N. E. 582; Chicago, etc., R. Co. v. Barnes (1905) 164 Ind. 143, 73 N. E. 91. In Sutherland, Stat. Constr. §§ 392, 393, this rule is stated as follows:

"392. A statutory remedy or proceeding is confined to the very case provided for, and extends to no other. It cannot be ensuch remedy. Harrison v. Stanton (1896) 146 ble or valid except on the statutory conditions that is, by strictly following the directions of the act.

"'393. A party seeking the benefit of such statute must bring himself strictly, not only within the spirit, but its letter; he can take nothing by intendment.' "

We conclude that, upon the face of the proceedings as they appear in relator's petition, a duty does not exist, in relator's favor, by

virtue of said judgment to levy said suspended tax.

There is another point, however, which is sufficient to defeat the present action, and that is that on the former appeal relator, to avoid a reversal, assumed positions which are absolutely contradictory of its present position. It will be observed that on questions as to the sufficiency of the evidence to support the finding, and particularly upon the questions as to whether there was a donation, and whether interest and penalty could be collected, Mr. Eldridge stated that the board was not a party and therefore was not bound; that the board might afterwards elect to take stock, notwithstanding the finding, if the right to it had not been waived, and that if the imposition of penalty and interest was unlawful, that could be determined later. The contention of Mr. Sims must not be overlooked in this connection, that there was but one question in the case in which the petitioners could have any possible interest, and that was as to whether "the railroad had expended an amount of money equal to said appropriation in the construction of its road in said township." How does such a position as this, offered as a practical answer to all of the questions raised in the case except as to whether the tax had been earned, accord with the present position of relator that the determination of the White circuit court of relator's ownership of the subject-matter of the suit amounts to an adjudication of right, which leaves it no longer dependent upon the statutes for a remedy?

The so-called intervening petition of the Western Construction Company was a pleading of a nondescript character, but as soon as the White circuit court filed its special finding and conclusions of law, it was evident that said court was construing it as a complaint against the township. There was no right to file such a complaint by the railroad company or its assignees; the proceeding was a special one, instituted before a tribunal of limited jurisdiction; and the circuit court on appeal could not with propriety grant any remedy that the board of commissioners was not authorized to grant. It is going quite far enough to hold that a petitioner or taxpayer, in view of the provisions of section 5369, supra, and section 17 of the act of 1869, as amended by the act of 1875, may obtain an order, on being summoned into court on a petition to cancel, that the tax be collected, but it certainly was never contemplated that the railroad company or its assignee might, at that stage of the proceedings, obtain a final judgment on a cross-complaint. Treating the assignment of errors on said appeal as the complaint in this court, and gathering the various propositions argued from the briefs which are on file and from the statements in the opinion of the court, it is difficult to resist the conclusion that the court ought

to have reversed the cause, at least as to relator. This being true, and the affirmance having been obtained on the lines of relator's then insistence, it would seem that, upon the ordinary principles which govern an estoppel in pais, relator ought to be held precluded from asserting the conflicting contention that it has a right to mandate to enforce what, according to its construction, would practically amount, by force of said adjudication, to an ordinary debt against the township.

Ab

But we are of opinion that there are other reasons, aside from the doctrine of an estoppel in pais, which are sufficient to preclude relator from assuming its present position. "A party who has acquiesced in a judgment cannot sue to annul it, no matter how radical its defects or absolute its nullity." bot ▾ Wilbur, 22 La. Ann. 368 And see 2 Herman, Estoppel and Res Judicata, § 1061. Here it is evident that relator not only acquiesced in the opinion which this court rendered, but actually procured it. To ease the stress of conflict on the validity of the judgment of the White circuit court, relator assumed positions on the former appeal concerning the effect of that judgment that are absolutely antagonistic to its present position, and, having obtained a decision along the lines of its own insistence, it cannot be heard now to contend that the judgment of the White circuit court is to stand four square as to all the world. Relator saw fit to stamp a meaning upon said judgment through the force of its own contention, acquiesced in by this court, and the judgment so construed must stand as a judgment procured. This is exemplified by Jeffers v. Jeffers, 139 Ill. 368, 28 N. E. 913, where it was said: "Complainants, by their own bill and proceedings under it, have established the rights of the defendants which they now attempt to defeat. This, clearly, they cannot do." See, also, Kelly v. Norwich Fire Ins. Co., 82 Iowa, 137, 47 N. W. 986.

By taking the positions indicated, and accepting the benefit of a judgment of affirmance based on its own contentions, there was, in effect, an election by relator, from which it is not at liberty to withdraw. 2 Herman, Estoppel and Res Judicata, § 1026. Indeed, we think that we can put our claim that relator cannot successfully assume its present position on the ground that in this action, which is in a sense a continuation of the former action, relator is not at liberty to depart from its positions upon which the court saw fit to base its judgment of affirm

American annotators of the Dutchess of Kingston's Case, Smith's Leading Cases (6th Am. Ed.) 764: "That a man must choose between different and inconsistent rights, and cannot assert one after he has deliberately elected to enforce the other, is a rule of natural justice which was known to the common law at an early period, and has since been liberalized and enlarged by equity." This principle is especially applicable to positions assumed in prior litigation. Lord Chancellor Loughborough de clared, in Wilson v. Townsend, 2 Ves. Jr. 693, 696: "You cannot act, you cannot come forth to a court of justice, claiming in repugnant rights." It was stated by Eustice, C. J., in Gridley v. Conner, 4 La. Ann. 416, 417: "We understand it to be a rule in the administration of justice that a man shall not be permitted to deny what he has solemnly acknowledged in, a judicial proceeding, nor to shift his position at will to a contradictory one, in relation to the subjectmatter of litigation, in order to prostrate and defeat the action at law upon it." In Gentry v. Barron, 109 Ga. 172, 34 S. E. 349, the defendant had procured a ruling on a former appeal that the action was prematurely brought, and it was held that he could not afterwards insist that the demand had accrued before in order to render available a plea of the statute of limitations. It was decided in Savage v. Johnson, 127 Ala. 401, 28 South. 553, that where a party had procured the dismissal of an appeal by contending, on petition for rehearing, that the decree was interlocutory, he could not afterwards recover on the theory that the decree was final. The court said: "The position assumed and urged by the appellants in another appeal must prevail against them here, and it follows that this bill cannot be maintained." In an earlier case in the same court it was stated that: "A defendant who, for the purpose of maintaining a defense, deliberately represented a thing in one aspect, cannot be permitted to contradict his own representation by giving the same thing another aspect in the same case." Hodges v. Winston, 95 Ala. 514, 11 South. 200, 36 Am. St. Rep. 241. Where it is apparent that, upon a former appeal, a party has led the court to omit to consider the questions sought to be raised as grounds for a reversal of the judgment by deliberately representing it as not precluding the appellant on a certain line of questions, and the court has, in effect, so held, it will not permit such party, on a second appeal, to take a position in respect to his rights in such judgment which is directly antagonistic to his former representation, and to the theory upon which he induced the court to affirm the case. Davis v. Wakelee, 156 U. S. 680, 689, 15 Sup. Ct. 555, 39 L. Ed. 578; Taylor v. Crook, 136 Ala. 354, 34 South. 905, 96 Am. St. Rep. 26; Pepper v. Shepherd, 15 App. D. C. 269; Turner v. Billagram, 2 Cal.

520; Kaehler v. Dobberpuhl, 60 Wis. 256, 18 N. W. 841; Perkins v. Jones, 62 Iowa, 345, 17 N. W. 573; Jones v. Pashby, 48 Mich. 634, 12 N. W. 884; Smiley v. Cockrell, 92 Mo. 105, 4 S. W. 443; 16 Cyc. 796, and cases cited.

We hold that the court below did not err in sustaining the demurrer to the petition and alternative writ. In some particulars our views, as expressed in this case, are in a measure out of accord with the principal opinion in State v. Board, 162 Ind. 580, 68 N. E. 295, 70 N. E. 373, 984, and to the extent of the conflict that case is disapproved. Judgment affirmed.

(166 Ind. 479)

MUNCIE PULP CO. v. KEESLING.
(No. 20,597.)1 .

(Supreme Court of Indiana. Feb. 21, 1906.) 1. WATERS AND WATER COURSES-POLLUTION OF WATER-ACTION FOR DAMAGES-PLEADING-PETITION-COMPLAINT SUFFICIENCY.

In an action for damages from the pollution of a stream, a paragraph of the complaint charged in substance that defendant was the owner of certain lands situated upon a creek above the lands of plaintiff, and that the lands of plaintiff before the wrongful acts complained of were improved and productive, and that defendant erected a large pulp mill on the stream, and that in carrying on the manufacture, a quantity of impure water was permitted to flow into the creek, whereby plaintiff's lands were damaged. Held, that the paragraph was not demurrable as not stating a cause of action. 2. SAME.

In an action for damages from the pollution of a stream, a paragraph of the complaint alleging that defendant had established a factory on a stream which passed through plaintiff's lands, and in the operation of the factory was depositing impure waters in the stream, it show a continued nuisance rather than a permanent injury to plaintiff's premises. 3. SAME CONTINUED NUISANCE-DAMAGES RENTAL VAlue.

In an action for damages to plaintiff's land from a continued nuisance consisting of the pollution of a stream flowing through the land, the depreciation in rental value to the commencement of suit is the measure of damages. 4. TRIAL INSTRUCTIONS CREDIBILITY OF WITNESSES.

An instruction that when witnesses are otherwise equally credible, and their testimony otherwise entitled to equal weight, greater weight and credit should be given to those whose means of information were superior and also to those who swear affirmatively to a fact, rather than to those who swear negatively or to a want of knowledge or recollection, invaded the province of the jury and was reversible error.

Appeal from Circuit Court, Randolph County; J. W. Macy, Judge.

Action by Henry C. Keesling against the Muncie Pulp Company. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under section 1337j, Burns' Ann. St. 1901. Reversed.

Thompson & Thompson and Engle, Caldwell & Parry, for appellant. Harding, Hovey & Wiltsie, for appellee.

JORDAN, J. This action was originally commenced by appellee against appellant Rehearing denied.

company in the Delaware circuit court to recover damages for injuries sustained to his premises, attributed to the pollution by appellant of a certain stream of water known as "Buck Creek." The complaint is in two paragraphs, each of which was held to be sufficient on demurrer for want of facts. The answer of appellant was a general denial and the statute limitations. On charge of venue the cause was tried by a jury in the Randolph circuit court, and a verdict returned in favor of appellee, awarding him damages in the sum of $4,000. Appellant's motion for a new trial, assigning various reasons therefor, was denied and judgment was rendered on the verdict. The errors assigned and relied on for reversal are: First, overruling the demurrer to each paragraph of the complaint; second, overruling the motion for a new trial.

The first paragraph of the complaint alleges that the defendant is a corporation, organized under the laws of the state of New York, and is doing business in the state of Indiana; that before the time of committing the wrongs hereinafter described the plaintiff was, and still is, the owner in fee simple of a certain farm in Delaware county, in the state of Indiana (describing the land), containing 148 acres, through which the waters of a certain stream known as "Buck Creek" were accustomed to flow. The defendant is the owner of a pulp mill, located on said creek above plaintiff's farm. The defendant empties, and for some time has emptied, the refuse of its said mill into said creek. Said refuse contains acid and other unwholesome ingredients, and the sediment thereof has ac cumulated and filled, and in accumulating and filling up the channel of said creek has spread and is spreading over the lands of plaintiff, thereby rendering a large area thereof, to wit, 60 acres, untenable and unfit for use, and on divers occasions has destroyed and is now destroying growing crops thereon, and has rendered and is now rendering the water in said creek unfit for use in watering stock and for other farm purposes, and has made the said land of plaintiff practically worthless and unmarketable; all of which has damaged him in the sum of $15,000, for which he demands judgment and for all proper relief.

The second paragraph, in like manner as the first, charges that the defendant, the Muncie Pulp Company, is a corporation, etc., and is engaged in the manufacture of wood pulp and is the owner of certain described lands situate upon the said creek, about one mile above the lands of the plaintiff. The ownership of plaintiff in the lands described in the complaint is shown, and it is alleged that these lands, before the wrongful acts of said defendant of which plaintiff complains, were improved, fertile, and produc tive, producing large crops of grain, vege tables, and other farm products, and well adapted to stock raising; that there is located

on said premises and lands a dwelling house, barn, and other outbuildings; and that plaintiff now occupies said lands and dwelling house for a residence for himself and family, and has no occupied the same for many years prior to the commencement of this action. It is averred that said Buck creek is a natural water course and flows through said lands of plaintiff, and that the said creek is a continuous and living stream; that prior to the grievances hereinafter mentioned said stream of water was largely fed by springs and afforded pure and excellent water for live stock, farming, and domestic purposes. It is alleged that in the year 1888 the defendant company erected a large pulp mill upon the lands owned by it, and placed thereon many vats, machinery and other appliances for the manufacture of wood pulp, and has been continuously engaged in said business from that time until the present. In the operation of said mills the defendant uses various kinds of acids, minerals, and poisonous and noxious substances, the descriptions of which are to the plaintiff unknown. In the process of manufacturing this wood pulp large quantities of water are used in connection with the said acids, minerals, and poisonous substances. The pleading then particularly discloses that in washing and carrying on the process of manufacturing the wood pulp large quantities of water are used, which water, after being impregnated with the said acids, minerals, and poisonous substances, is permitted and caused by the defendant to flow into said Buck creek, and ever since the erection and construction of the defendant's mill this water, containing said acids, minerals, poisonous substances, etc., has flowed into said creek and has poisoned and polluted the waters thereof and rendered the same unfit for agricultural and domestic purposes, and unfit to be used by the live stock and animals on plaintiff's farm and in the locality thereof. It is further charged that the defendant has caused and is now causing large quantities of said minerals and other refuse matters and poisonous substances and sediments from its said mill and factory to flow into said stream and be deposited in the bottom and sides thereof, and upon the lands adjacent thereto, and that said refuse, sediments, and poisonous substances have been carried and are now being carried by the waters of said stream down to and upon plaintiff's land, and have spread and are now spreading over the same, and have polluted and poisoned said land so much that grain, grass, and other crops will not grow thereon; and that the defendant has entirely destroyed and rendered useless thereby 60 acres of plaintiff's said land, and that said substances and minerals so permitted by the defendant to flow in and upon plaintiff's land as aforesaid stated become hard and crusted, and in a great measure have destroyed said land for agricultural purposes and for the raising of stock. The land so overflowed and

destroyed, as aforesaid stated, is situated about the center of plaintiff's farm, and the waters of said stream, by being so poisoned, polluted, and contaminated by the said substances as aforesaid stated, produce and have produced a great and sickening stench, and that noxious exhalations and noxious and offensive smells arise therefrom which render the habitation near said stream unhealthy, unpleasant, and injurious. Said noxious and offensive odors and smells are offensive to the senses and interfere with the comfortable enjoyment of life and property of the plaintiff and of other inhabitants of said locality. Prior to the pollution of said creek by the defendant, as aforesaid, it contained many fish which afforded food to the plaintiff and his family and other inhabit ants of said locality; that since the pollution thereof as aforesaid all the fish therein have been destroyed by and on account of the pollution, and it is impossible for such fish to live or to exist in said stream; that by reason of the noxious, nauseous, unhealthy, offensive, and poisonous substances the plaintiff's lands have been greatly injured and damaged for farming purposes, for stock raising, and also as a dwelling place for himself and family. Before the commission of the wrongs and grievances complained of plaintiff's lands were valuable, worth $100 per acre; that since the commission of the wrongs in question, and by reason thereof, the said lands are worth only $60 per acre. That defendant is still committing the injury to plaintiff's land as hereinbefore described, and intends to so continue to do indefinitely. By reason of the wrong and injury to plaintiff's premises herein complained of he is damaged in the sum of $15,000, for which he demands judgment and all other proper relief.

It is insisted by appellant's counsel that the court erred in overruling the demurrer to the first paragraph of the complaint, and to sustain their contention they point out six objections, among which are: First, because there is no direct allegation that the stream of water in controversy ran by or through the lands of appellee; second, there is no averment that appellant company ran and operated the pulp mill mentioned in the complaint; third, there is no allegation that appellant emptied the refuse from said mill into Buck creek, etc. We cannot commend this paragraph as a model pleading, and possibly it is open to the objections that it is not as direct and positive in its character as the rules of good pleading require; but as the judgment must be reversed on another ground, and as all of the objections to the pleading may be obviated by amendment upon another trial, we therefore do not consider its sufficiency in this appeal.

It is contended also that the second paragraph of the complaint does not show a good cause of action and is bad pleading, because the facts therein stated are not direct, but

are mainly in narrative form. But these contentions are not sustained, and we hold that the paragraph sufficiently states a cause of action. That this is true is settled by the decisions of this court. See Muncie Pulp Co. v. Martin, 164 Ind. 30, 72 N. E. 882, and cases there cited; West Muncie Straw-Board Co. v. Slack, 164 Ind. 22, 72 N. E. 879; Weston Paper Co. v. Pope, 155 Ind. 394, 57 N. E. 719, 56 L. R. A. 899. See, also, Muncie Pulp Co. v. Martin, 23 Ind. App. 558, 55 N. E. 796; Muncie Pulp Co. v. Koontz, 33 Ind. App. 532, 70 N. E. 999.

Counsel for appellant next assert that there is no specific allegation in either paragraph of complaint that the rental value of the lands in controversy has been diminished; and a demand for the recovery of such damages. Therefore the argument is advanced that there can be no recovery of such damages. It is contended that appellee in his complaint proceeds upon the theory of permanent injury to his premises, consequently there can be no recovery of damages for the diminution of rental value. Counsel, however, are mistaken in their view in regard to the theory of the second paragraph of the complaint, for when tested or construed by the general scope thereof it is apparent that the theory thereby outlined is to recover damages for injuries due to a cause of an impermanent nature or character, or, in other words, attributable to what, as shown by the facts alleged, is a temporary nuisance or one which may be abated. The paragraph in question closes with the charge that by reason of the wrongs and injuries to plaintiff's premises therein complained of he has been damaged in the sum of $15,000. It is manifest, from the very character of the wrongful acts set out in this paragraph, that the pollution of the stream in controversy constitutes a continued nuisance rather than a permanent injury to appellee's premises, and the depreciation of their rental value is an essential element of the damages sustained. Muncie Pulp Co. v. Martin, 164 Ind. 30, 72 N. E. 882.

Counsel contend that the damages due to the depreciation of the rental value of appellee's premises are special and therefore there can be no recovery for such damages, unless they are specifically alleged in the complaint. In the ease of Muncie Pulp Co. v. Martin, supra, we held that under the form of the complaint therein the plaintiffs were entitled to recover for the temporary loss of the use of their lands. We are unable to perceive any substantial difference between the complaint in that case and the one at bar. It is true that the complaint in the Martin Case contained a statement that the "rental and market value" of the lands involved had been diminished to the amount of $2,000, while in the case under review there is no specific averment to that effect; nevertheless there are allegations, or statements, in the second paragraph of the complaint which disclose

that by reason of the poisonous acids, etc., which have been spread over appellee's lands by the polluted waters of the creek in controversy, grass and other crops will not grow thereon and that the said lands have, to a great extent, been rendered unfit for agricultural purposes and the raising of stock. Depreciation or diminution of the rental value of appellee's premises cannot be regarded in the nature of special damages and, therefore, do not fall within the rule which requires that such damages be particularly shown or stated in the complaint, in order that evidence on the trial may be given to establish them, but they were such damages as naturally or necessarily accrued or resulted from the wrongful acts as alleged in the second paragraph of the complaint. Therefore, under the averments to which we have above referred, and other allegations of said paragraph, appellee was entitled to recover for the injuries to his lands which were the necessary or natural consequences of the alleged wrongful acts of appellant. Lindley v. Dempsey, 45 Ind. 246; Hutts v. Shoaf, 88 Ind. 395; Evansville, etc., R. R. Co. v. Holcomb, 9 Ind. App. 198, 36 N. E. 39; Emery v. City of Lowell, 109 Mass. 197; City of South Bend v. Paxon, 67 Ind. 228. Chitty on Pleading states the rule as follows: "Whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent the surprise on defendant which might otherwise ensue on the trial the plaintiff must in general state the particular damage which he has sustained, or he will not be permitted to give evidence of it." Volume 1, p. 411.

Diminution of the rental value of land and the loss of some particular rent or rents are not virtually of the same character or nature and must not be confused with each other on the question of alleging special damages in a pleading. As the facts alleged in the second paragraph of the complaint, which disclose the pollution of the creek or stream by appellant, do not necessarily constitute a nuisance of a permanent character, but one that may be abated, therefore, under the general rule affirmed by the authorities, the measure of damages is the loss or diminution of rental value of the premises occasioned during the time the nuisance is maintained to the commencement of the action. Muncie Pulp Co. v. Martin, 164 Ind. 30, 72 N. E. 882, and cases there cited; Indiana, etc., Ry. Co. v. Eberle, 110 Ind. 542, 11 N. E. 467, 59 Am. Rep. 225; Weston Paper Co. v. Pope, 155 Ind. 394, 57 N. E. 719, 56 L. R. A. 899; Shirely v. Cedar Rapids, etc., R. Co., 74 Iowa, 169, 37 N. W. 133, 7 Am. St. Rep. 471; Wallace v. Kansas City, etc., R. R. Co., 47 Mo. App. 491; Hoffman v. Flint, etc., R. R. Co., 114 Mich. 316, 72 N. W. 167; Threatt v. Brewer Mining Co., 49 S. C. 95, 26 S. E 970; Watts v. Norfolk, etc., R. R. Co., 39 W Va. 196, 19 S. E. 521, 23 L. R. A. 674 45