66 The credit which was indorsed upon the note," it was said in case 5, "is undoubtedly equivalent to an admission by him that so much as was credited has been paid, and there is no principle of evidence which will allow a person after he has admitted a fact, even if the admission is by parol, and not in writing, to do away the force of the admission by an after denial or withdrawal of it. Though it be afterward denied, if it were by parol only, or if it be in writing, though it be afterward erased or obliterated, the admission is nevertheless evidence against the person making it, and is entitled to all the weight of evidence of that sort until explained away or disproved by him." In Louisiana a presumption of payment does not arise from the failure of the claimant to include the debt in the schedule filed by him on a cession of his goods when he was ignorant of his rights at the time the schedule was made. (6) (B.) 1. A draft payable to his own order drawn by T.on C. is found in the possession of C. The presumption is that it was paid by C.(7) 2. An order for a sum of money drawn on A. by B is produced by A. The presumption is that it was paid by A.(8) 3. Drafts drawn by B. on A. and accepted by A. in favor of C. are produced by A. The presumption is that A. has paid them.(9) This rule was founded on a reasonable principle, which is supported by numerous cases that where bills of exchange, checks, orders for the payment of money or goods, promissory notes or other obligations are paid, they as a general rule go into the hands of the person paying them. It is to be presumed, as already said, that a man paying a written obligation will take it into his possession.(10) 64 "When," said Lord Ellenborough to the jury in an old case, there is a competion of evidence upon the question whether a security has or has not been satisfied by payment, the possession of the cancelled security ought to turn the scale in his favor, since in the ordinary course of dealing the security is given up to the party who pays it."(11) It has been held that where the defense of payment of a note or other security is made, and the evidence on both sides is evenly balanced, the possession by the plaintiff of the uncancelled paper will turn the scale in his favor.(12) In case 2 it was said: "No argument can be drawn either from reason or convenience why possession of an order by the person on whom it was drawn should not prima facie be evidence of his having paid it to (6) Tremoulet v. Cenas, 6 Mart. (N. S.) 541; 17 Am. Dec. 195 (1828). (7) Connelly v. McKean, 64 Penn. St. 113 (1870); Birkey v. McMakin, id. 343 (1870). (8) Zeigler v. Gray, 12 S. & R. 42 (1824). (9) Hays v. Samuels, 55 Tex. 560 (1881). The presumption is that a man paying a note will take it into his possession. Haywood v. Lewis, 65 Ga. 224 (1880), and it is presumed that the payment was made to the person entitled to receive the money. Lipscomb v. De Lemon, 68 Ala. 592 (1881); Potts v. Coleman, 67 id. 221 (1880). (10) Mills v. Hyde, 19 Vt. 59 (1846); Garloch v. Geortner, 7 Wend. 198 (1831); Weidner v. Schweigart, 9 S. & R. 385 (1823); Rubey v. Culbertson, 35 Iowa, 264 (1872); Somervail v. Gillies, 31 Wis. 152 (1872); Penn v. Edwards, 50 Ala. 63 (1873); Lane v. Farmer, 13 Ark. 64 (1852); Edwards v. Campbell, 23 Barb. 423 (1856); Bedell v. Carll, 33 N. Y. 581 (1865); Union Canal Co. v. Lloyd, 4 W. & S. 393 (1842); Carroll v. Bowie, 2 H. & McC. 457 (1848). (11) Brembridge v. Osborne, 1 Stark. 374 (1816). (12) Doty v. Janes, 28 Wis. 319 (1871). some one; and this whether it was payable to bearer or only to a particular person. The presumption that the payee would not part with his security without having received satisfaction is a reasonable one, and although these orders are sometime left with the persons to whom they are directed by careless persons, without payment having been made, yet that sometimes occurs with receipts which accompany tradesmen's bills, and no one would pretend that a receipt attached to a bill would therefore not be competent. There is no necessity that the order should be indorsed by the payee, or that it be made payable to bearer; it is not as evidence of the transfer of the debt, but as extinguishment of it, that possession of the paper becomes material." In an English case A. brought an action against B. for money paid out by him in accepting and paying bills of exchange for the accommodation of B. The bills were produced by C. It was held by the chief justice that the presumption was that he paid them, provided it was shown that they were once in circulation after being accepted. (13) "Show," said Lord Ellenborough, "that the bills were once in circulation after being accepted, and I will presume that they got back to the acceptor's hands by his having paid them. But when he merely produces them, how do I know that they were ever in the hands of the payee or any indorsee with his name upon them as acceptor? It is very possible that when they were left for acceptance he refused to deliver them back, and having detained them ever since, now produces them as evidence of a loan of money.' This ruling has been criticised by our courts. Undoubtedly," said Sharswood, J., in a Pennsylvania case: (14) "They were no evidence of a loan, but having proved that they were originally lent, of which the report does not state that there was any evidence, why should not the possession of them by the acceptor after maturity raise the presumption that he had paid them? With the highest respect to so great an authority upon nisi prius law, I may be allowed to express a doubt as to the sufficiency of the reason. Contrary to established principle, it presumes a fraud to have been perpetrated when the natural presumption is that which consists with honesty. Besides which it assumes that the holder acquiesced in a palpable wrong. If the drawee retains the bill an unwarrantable time, the holder could sue him in trover It is a reason which applies as well to a bill which had been negotiated before acceptance; for the indorsee may leave it in the hands of the drawee for acceptance. When the bill is presented it is reasonable that the drawee should be allowed some time to deliberate whether he will accept or not. It seems that he may demand twenty-four hours for this purpose, and that the holder will be justified in leaving the bill with him for this period. So that even an indorsed bill produced by the acceptor after maturity would not be evidence of payment if this is a sound reason. But surely indorsed bills, checks or orders for the payment of money are prima facie evidence according to the general current of the authorities." (C.) 1. A. is sued on a note made by A. to the plaintiff's intestate. A. produces the note with his name cancelled. The presumption is that the note is paid. (15) 2. A note made payable to A. was sued on by his representatives after his death. When produced in evidence the note had two lines drawn through its face. The presumption was that it had been paid.(16) (13) Pful v. Vanbatenberg, 2 Camp. 439 (1810); and see Scholey v. Walsby, Peake, 25 (1820). (14) Conelly v. McKean, 64 Penn. St. 118 (1870). In case 1 it is said: "Pothier, in his work on Obligations, says that "it ought to be decided generally from the possession of the debtor that the creditor shall be presumed to have given up the security, either as acquitted or released, until the creditor shows the contrary; as for instance, that it was taken surreptitiously." He says further: "There is sufficient ground to presume a donation and release of the debt when its debtor gives up the security, and the circumstance of its being in the possession of the debtor is a sufficient reason for presuming that the creditor has given it up; as that is the most natural way of the possession passing from one to the other. * * * * If a promissory note or bond should chance to be found in the hands of the debtor, or if it be crossed, razed or torn in pieces, either of these circumstances will create a presumption that it has been acquitted, which presumption will remain until clear proof be brought that the debt is still owing; as that the appearance came by violence or accident." In this case both circumstances concur. The note is found in the hands of the maker, and it is cancelled by the removal of the maker's name. These circumstances could not lawfully exist without the act or consent of the holder of the note, and that they occurred unlawfully will certainly not be presumed. In case 2 it was said: "If at any time before a final trial the note or bond upon which the action has been brought undergo any alteration or receive any impression indicating its destruction or satisfaction, it would appear to be but a necessary and reasonable requisition on the plaintiff that he should afford the explanation. If the act done was the result of mistake or accident, or if any effect was designed by it different from its ordinary import he alone must be presumed to know the circumstances and to possess the means of explanation." (D.) 1. A receipt of the payment of a quarters' rent is produced. The presumption is that all former rent is paid. (17) 2. A tax assessed against E. for the year 1834 is not included in the bill for 1835. The presumption is that it is paid. (18) 3. The question is whether A. has paid a State tax assessed upon his lands for the year 1842. The taxes assessed on the same land are proved to have been paid by A. for subsequent years. The presumption is that the tax for 1842 is paid. (19) As said in another case like case 1, this presumption arises from the improbability that the former rent remained unpaid when rent is specifically received for a subsequent period. This presumption obtains as well where several persons are entitled to receive money, as in an individual case, for they are all to be pre sumed conusant of their rights. This presumption may be repelled, but standing ancontradicted it is decisive.(20) (E.) 1. It is proved that on January 1, 1880, B. borrowed a certain sum of monoy from A. It is also proved that on a subsequent day an unascertained sum of money passed from B. to A. The presumption is that A. was paid his debt. (21) (17) Brewer v. Knapp, 1 Pick. 337 (1823); Crompton v. Pratt, 105 Mass. 255 (1870). (18) Attleborough v. Middleborough, 10 Pick. 378 (1830); and see Robbins v. Townsend, 20 id. 345 (1838). (19) Hodgdon v. Wright, 36 Me. 337 (1853). (20) Decker v. Livingston, 15 Johns. 479 (1818); and see Walton v. Eldridge, 1 Allen, 203 (1861). (21) Swain v. Ettling, 32 Penn. St. 486 (1459). When absence of other dealing is shown, proof of money paid by maker of payee would raise presumption that it was paid on the note. Somervail v. Gillies, 31 Wis. 152 (1872). 2. A. sued B. for money alleged by him to have been loaned to B.. A. testified: "B. requested me to send him $18; I sent it and he has not paid me the same or any part of it." There was no other evidence. The presumption was that the money was due to B. (22) "There is not principle better settled," is was said in case 1, "than that where one pays money to another, in the absence of explanation as to the cause of payment, the presumption is that it was paid because it was due, and not by way of a loan. The plaintiff proved nothing more than he would have proved by the production of a draft drawn by the defendant on him, and proving that he, the plaintiff, had paid the draft. On such evidence he could not recover against the drawer of the draft. Prima facie, the acceptor and payer of the draft is the party primarily liable. It is presumptively drawn against funds in the hands of the drawee. * * *The case is destitute of any circumstance which can warrant the inference that the money was advanced as a loan, unless the mere fact of the payment of money by one party at the request of another is to be considered as furnishing legal evidence, that the money was advanced as a loan. This cannot be held without overturning well sustained rules." (F.) 1. A brickmaker sued an architect for work and labor performed two years before bringing the action. It was the custom to pay the workmen every Saturday night, and the plaintiff with the others had been seen waiting to receive his wages. The presumption was that the workman had been paid. (23) 2. A remittance by mail is a presumption of payment where the debtor has been requested by the oreditor to remit in this way or it is the course of business.(25) In a case like case 1, Gaselee, J., said: "In the regular course, if a servant has left a considerable time, the presumption is that all the wages have been paid, and that makes it proper to consider whether, in this case, the facts proved rebut that presumption. In a case tried a few years ago at Guild Hall, which was an action by a workman at a sugar refinery, a witness proved that the plaintiff had worked there for more than two years. But Abbott, C. J., said, that he should direct the jury to presume that men employed in that way were regularly paid every Saturday night, unless some evidence was given on the part of the plaintiff to satisfy the jury that the plaintiff had in point of fact never been paid; and as no such evidence was produced the plaintiff was nonsuited." (G.) 1. A. sued B. for the price of eleven hogs sold by A. to B. B. pleaded payment. It was proved that A. went to B.'s house to settle for the bogs, that he had no money when he went in but had when he came out, (22) Sayles v. Olmstead, 66 Barb. 590 (1873). (23) Lucas v. Novisdienski, 1 Esp. 296 (1795). The words "terms cash" on an unreceipted bill of goods sent by a wholesale to a retail dealer raise no presumption of law that the goods were paid for before they were shipped. Wellauer v. Fellows, 48 Wis. 105 (1879). (24) Boyd v. Reed, 6 Heisk. 631 (1871). (25) Whistler v. Drake, 35 Iowa, 103 (1872). For other cases in which payment has been inferred from circumstances see Connecticut Trust Co. v. Melandy, 119 Mass. 450 (1876); Alvord v. Baker, 9 Wend. 323 (1832); Risher v. The Frolic, 1 Woods, Whether the taking of a negotiable note for a pre-existing debt is a payment of that debt is a question on which the authorities are in conflict. See Strang v. Hirst, 61 Me. 9 (1871), where the cases on both sides are reviewed. 92. which money he stated he had received of B. The presumption is that A. was paid. (26) In case 1 it was said: "If he had no money, went to defendant to settle for the hogs and when he left them had money, and said he got it from theu, it needs no argument to show that it is legitimate to presume, or at least the jury may presume therefrom, that he did settle and get his pay." RULE VI. The presumption in Rule 5 (B. and C.) does not arise, where the debtor had the means of obtaining possession of or of cancelling the obligation other than by paying it, (h) nor in D. and E. where the debt paid was not the debtor's alone.(j) ILLUSTRATIONS. (H.) On the 1. A father held the note of his son for $425. father's death his representatives sued on the note; but the son produced it cancelled. It appeared that he had the means of access to his father's papers. There was no presumption that the note had been paid.(27) In case 1 it was said: "Is the production of this note by the defendant, under the facts of this case, evidence of its discharge when it is proved not to have been paid or satisfied. I think it is not. Pothier (Obligations 73) says, that Boiseau holds that possession of the note affords a presumption of its payment; but if he allege a release he must prove it; for a release is a donation and a donation ought not to be presumed. Pothier differs and thinks it should be presumed unless the creditor shows the contrary. But Pothier agrees with Boiseau, that if the debtor was the general agent or clerk of the creditor having access to his papers, possession alone might not be a sufficient presumption of payment or release-so if he was a neighbor into whose house the effects of the creditor had been removed on account of a fire. The latter proposition seems applicable to this case. Here the case shows without contradiction that the defendant living at home with his father had a key that fitted his father's desk where this note was kept. (J.) 1. A. was indebted to B. on a note made by himself and others. After the maturity of the note A. rendered services to B. who paid him money therefor. In a suit on the note by B. there is no presumption that A. had paid it.(28) In case 1 it was said, that as all the parties to the note were joint makers and equally bound, there could be no presumption that A. settled what was not exclusively his own debt. RULE VII. The presumption of payment is stronger than the presumption of continuance, but weaker than the presumption of innocence. ILLUSTRATIONS. 1. An action is brought on an administrator's bond to compel him to account for and pay over the amount of a private debt due from him to the intestate. Twenty-four years have elapsed since the bond was given. There is no proof of a decree of distribution ordering him to pay to the heirs. Therefore the presumption of payment and the presumption of innocence (arising from the fact that he would have violated his duty in paying without a decree) conflict, and the latter must prevail. (26) Grey v. Grey, 47 N. Y. 552 (1872); Kenney v. Public Admr., 2 Bradf. 319 (1853). (27) Mechanics' Bank v. Wright, 53 Mo. 153 (1873). (28) Potter v. Titcomb, 7 Me. 302 (1831). In case 1 it was said: "It has been earnestly contended that the facts furnished a legal ground on which the jury might have presumed that the defendant had paid or accounted to the heirs of the intestate for the amount of the notes without the formality of any proceeding in the Probate Court by way of a settled account and a decree thereon, and that the judge should have left this question to the jury. The obvious reply to this objection and argument, is that the law does not presume that an administrator does wrong; it does not presume that the defendant did what by law he had no right to do, that is that he had made an unauthorized pay ment to the heirs under the circumstances mentioned. He was bound to account to the judge of Probate, and he had no right to pay the heirs but under decree. To presume it would be to presume against law and right. We do not mean to to say that had there been proof that the amount of the notes had been actually apportioned, and paid to the several heirs, though without a decree of the Probate Court, it might not, in a hearing in chancery, be a bar to an execution for any thing beyond nominal damages. It would be as strange to sanction the presumption where mentioned as that which was relied upon in another part of the argument to prove that the intestate had forgiven the debt due on the notes. Wrongs and gifts are not to be presumed; they must be proved." JOHN D. LAWSON. ST. LOUIS, Mo. RAILROAD ACCUMULATING SURFACE WATER DAMAGES. SUPREME COURT OF IOWA, APRIL 23, 1884.* DRAKE V. CHICAGO, R. I. & P. R. Co. Where a railroad company has an easement to run its cars over a track constructed through a subservient estate, where the effect of the construction of an embankment would be to obstruct the passage of surface water and damage the surrounding estate, but sufficient drainage can be secured by the construction of a ditch or culvert, it will not be presumed that the company, when purchasing the right of way, was desirous of paying for the right to obstruct the water; and if they did not pay for this right their use of the easement binds them to furnish the proper drainage. An instruction that they must construct their embankment so as to furnish this drainage is correct. Where a person discovers that he is maintaining a nuisance, and abates it, but suffers it to arise again, he is liable, without notice, although the nuisance was created originally by his grantor. When, since a cause of action accrued, the statute of limitations has run, but damage has continued to be done within the time provided by statute, the action is not barred. Powers v. Council Bluffs, 45 Iowa, 652, distinguished. Where ungrown crops are destroyed by being flooded, a calculation of what the crops would have been worth, based upon the value and quantity of other crops, is improper evidence, and should be excluded. PPEAL from Van Buren District Court. Action to recover for damages alleged to have been sustained by reason of the accumulation of water on the plaintiff's land, caused by the construction of the defendant's embankment without the construction and maintenance of proper ditches and culverts. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals. M. A. Low, for appellant. H. B. Hendershot and Sloan, Work & Brown, for appellee. *19 N. W. Rep. 215. ADAMS, J. The road was constructed in 1870 by the Chicago & Southwestern Railroad Company. The defendant in 1872 succeeded to the rights of that company. At the time the road was constructed the land in question was owned by the plaintiff's grantor. The plaintiff became the owner in 1874. From the time of the construction of the road in 1870 to 1876 no damage appears to have resulted to the land in question. In the latter year the plaintiff began to complain. Soon afterward the defendant constructed a ditch along its right of way from the plaintiff's land to an opening in the road where the same was constructed upon trestle work. This ditch was reasonably successful as a drain until 1880, when it became obstructed by accumulated dirt and other matter, and while the defendant made some effort to remove the obstructions, they were not in fact sufficiently removed, and during the cropping seasons of 1880 and 1881 water accumulated upon the plaintiff's land, being prevented primarily by the embankment from escaping, and not afforded a sufficient outlet by the ditch. Certain crops were destroyed, and a portion of the land was rendered wholly untilla. ble. The defendant contends that it did not become liable for any damages, and that if it did this action is barred by the statute of limitations; and furthermore that the court mistook the proper means of damages and allowed improper evidence to be introduced. 1. The first question which represents itself as to whether the defendant owed the plaintiff any duty in respect to the surface water. The court below thought that it did. It gave an instruction in these words: "In my judgment the railroad company is under legal obligations in constructing its railroad through the country, in crossing farms and land generally, to so construct its embankment as not to flow surface water back from the land through which it passes. I do not think that the common law, with reference to the right of owners of town lots or other lands to fight surface water from them, can justly be made to apply to railroad companies." The general doctrine relied upon by the defendant to the effect that every laud-owner has the right to exclude surface water from his premises was fully recognized in O'Connor v. Fon du Lac, A. & P. Ry. Co., 52 Wis. 526; 38 Am. Rep. 754; 9 N. W. Rep. 287, and held to apply even to railroad companies. The court in that case said: "The company has only obstructed a ditch which drained or carried off surface water from the plaintiff's premises. We do not think that the defendant was bound to keep that ditch open on its own land for the convenience of the plaintiff. In other words, the owner of land is under no legal obligations to provide a way for escape of mere surface water coming on to his land from the land of his neighbor, but has the right to change the surface so as to interfere with or obstruct the flow of such water." In Gannon v. Hargadon, 10 Allen, 109, a case between adjacent land-owners, the court said: "The right of the owner of land to improve and occupy it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water which may accumulate thereon by rains and snows falling on its surface or flowing on it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands or pass into and over the same in greater quantities or in other directions than they were accustomed to flow." See also in this connection Parks v. Newburyport, 10 Gray, 28; Wilson v. Mayor, etc,, 1 Den. 595; Cairo R. Co. v. Stevens, 73 Ind. 278; 38 Am. Rep. 139; Barkley v. Wilcox, 86 N. Y. 140; 40 Am. Rep. 519; Morrison v. Rail road Co., 67 Me. 353; Lynch v. Mayor, 76 N. Y. 69; 32 Am. Rep. 271; Taylor v. Fickas, 64 Ind. 167; 31 Am. Rep. 114; Gibbs v. Williams, 25 Kan. 214; Grant v. Allen, 41 Conn. 156. As holding a different doctrine, the plaintiff cites Ogburn v. Connor, 46 Cal. 346; 13 Am. Rep. 213; Footle v. Clifton, 22 Ohio St. 247; Parter v. Durham, 74 N. C. 769; Gillham v. Madison Co. R. Co., 49 Ill. 484; Gormley v. Sanford, 52 Ill. 158; Livingston v. McDon ald, 21 Iowa, 160; Cornish v. C., B. & Q. R. Co., 49 id. 378; Van Orsdol v. B., C. R. & N. R. Co., 56 id. 470; 9 N. W. Rep. 379. In the case last cited the court held that a railroad company could not be allowed to obstruct a natural channel of water. In Livingston v. McDonald the court held that the owner of the higher land could not be allowed to collect water and precipitate it in increased quantities to the land below, to the injury of such land. The question as to whether a land-owner can be allowed, by changing the surface of his land, or erecting improvements thereon, to prevent the escape of surface water from adjacent land, where the same did not flow through any channel, has never been determined by this court; and we have to say that it appears to us that such question does not necessarily arise in the case at bar. The cases cited arose between adjacent owners. There is no evidence that the defendant owns the land which it occupies with its road. Its right was probably that of an easement. It is not claimed by the plaintiff that the defendant is a mere trespasser, and in the absence of any averment or evidence to that effect we could not assume that it is. The parties have proceeded upon the theory that defendant's occupancy is rightful. In the absence then of evidence as to the extent of defendant's right in the premises, we may assume that it is sufficient to make its occupancy rightful, and we cannot assume more. We may proceed then upon the theory that the defendant has an easement. The plaintiff's testimony shows that the railroad crosses his land, and we find no evidence to the contrary. The defendant's estate then appears not only to be an easement, but it is one to which the plaintiff's estate is the subject or servient estate. The easement, we may assume, was acquired by proceedings for coudemnation under the statute, or by purchase, and it matters not which. The important question is as to what the defendant or its grantor, the original owner of the easement, must be presumed to have paid for. In Stodghill v. C., B. & Q. R. Co., 43 Iowa, 26, it was held that the defendant paid for what the commissioners should properly have considered in their estimate, and among the things was not included the right to divert a natural stream of water. On the other hand it is to be observed that in Sabin v. Vermont Cent. R. Co., 25 Vt. 363, it was held that the right-ofway damages covered the right to cast rock on the adjacent premises by blasting, so far as was necessary in the construction of the road. The draining of wells and the diversion of water courses, it is said, are covered by the right-of-way damages where the same are necessary in the construction of the road. Prop'rs of Locks and Canals v. Railroad Co., 10 Cush. 485. If we could suppose a case where the construction of a railroad would necessarily interfere with the flow of surface-water, and cause it to accumulate and stand on the land from which the right of way is taken, the injury that would accrue therefrom should, we think, be considered by the commissioners, and embraced in their appraisement of right-of-way damages. The land-owner is entitled to be paid, not merely the value of the land taken, but for all incidental injuries which must necessarily result from the proper construction and maintenance of the road. Kucheman v. C., C. & D. Ry. Co., 46 Iowa, 466; Imlay v. Railroad Co., 26 Conn. 249. But the undisputed evidence in the case at bar shows that the drainage of the surface water from the plaintiff's premises was easily maintainable by the construction and maintenance of a ditch along the defendant's right of way to its trestle work. The case is not different from what it would have been if the defendant could have effected the drainage by the construction and maintenance of one or more culverts. Where the effect of a mere embankment would be to obstruct the passage of surface water and cause damage to the premises from which the right of way is taken, but sufficient drainage can be easily secured by a ditch or culvert, it appears to us that when the company applies for a right of way it could not be presumed to be desirous of securing and paying for the privilege of obstructing the passage of the water. Such being our view, we could not say that the right to obstruct the passage of the water was included in the right-of-way damages. The owner then of the premises from which the right of way was taken was paid, as we must presume, upon the theory that the company preferred to protect him against this incidental injury. The very enjoyment of the easement therefore carried with it day by day the obligation to furnish this protection. Possibly this would not be so if the evidence showed or we could assume that the company acquired the fee-simple title to the land which it occupies. Without committing ourselves to an approval of the instruction as a general and unqualified proposition, we have to say, that as applied to the facts of this case, it appears to us to be correct. 2. It is not shown that the plaintiff expressly notified the defendant of the effect upon his land of the construction of the embankment without suitable drainage. The defendant insists that inasmuch as the embankment was not constructed by itself, but by its grantor, it did not become liable in the absence of notice. It cites and relies upon Slight v. Gutzlaff,35 Wis.675; 17 Am. Rep. 476. In that case Ryan, C. J., says: "When a lessee or grantee continues a nuisance of the nature not essentially unlawful, erected by his lessor or grantor, he is liable to action for it only after notice to reform or abate it;" citing McDonald v. Gilman, 3 Allen, 264; Johnson v. Lewis, 13 Conn. 307; and several other cases. See also in this connection the late case of State v. Robinson, 52 Iowa, 228; 2 N. W. Rep. 1104. But the case at bar, it appears to us, is distinguishable. The defendant seems to have become aware of the effect of the embankment in preventing the escape of surface-water from the plaintiff's land, and actually abated the nuisance, but afterward suffered a nuisance to arise again by suffering the ditch to become obstructed. We have discovered no decision or principle upon which we could hold that the defendant was entitled to notice. 3. We have next to consider whether the plaintiff's claim is barred by the statute of limitations. The first injury was sustained in 1876. This action was brought in 1882, more than five years thereafter. Without question, an action for the injury sustained in 1876 would be barred, but the plaintiff makes no claim for that injury. The defendant's position however is that the moment the plaintiff's land was overflowed he had a right, if the circumstances were such as to give him a right of action, to maintain an action once for all upon the theory that no protection would be furnished him, and that his damages would be measured by the diminution of the value of his premises by the construction of the road in the manner in which it was, without ditch or culvert then or thereafter to be furnished. He relies upon Powers v. Council Bluffs, 45 Iowa, 652. In that case the whole injury was re garded as being received at one time, and that being more than five years before the commencement of the action, it was held to be barred. But the injury in that case was of such a character that it was beyond the city's power to remedy it. The remedy to be applied, if any, was by the construction of a wall on the plaintiff's premises where the city had no right to go. The remedy in the case at bar is to be applied on the defendant's premises, and that too in the discharge of a subsisting obligation. The case falls under McConnell v. Kibbe, 29 111. 483, and Bowyer v. Cook, 4 Mau., Gr. & S. 236. In our opinion the plaintiff's action is not barred. 4. The plaintiff was allowed, against the objection of the defendant, to testify in substance that the land in question would, if it had not been flooded, have produced as much corn as he raised in other land, and that he guessed that it would have produced from 40 to 50 bushels per acre, and that the corn would have been worth $15 per acre. It is not usual, we think, where ungrown crops are destroyed by being flooded, to allow witnesses to go into a definite calculation of what the crops would have been worth, based upon evidence as to the quantity and value of other crops. All calculations which embrace speculative profits should, as far as the nature of the case will allow, be carefully excluded. Ungrown crops are a part of the realty. The injury done is to be deemed an injury to the realty. The question is as to how much the premises were diminished in value. In Chase v. N. Y. Cent. R. Co., 24 Barb. 273, an action for damages sustained by reason of an overflow of water upon the plaintiff's premises, caused by the defendant's embankment, it was held that the jury was correctly instructed that the measure of the plaintiff's damages was the difference between the value of the plaintiff's premises immediately before the injury happened, and the value of the same immediately after. Substantially the same rule was held in Easterbrook v. Erie Ry. Co., 51 Barb. 94. Where the flooded premises are covered by an ungrown crop their value should of course be estimated with reference to the crop. But then the estimate should be made with reference to the crop at the time of the injury. In the case at bar the flood occurred in the early part of the season, when the corn was for the most part about a foot high. The premises were enhanced in value much or little by the crop, according to its condition and prospects. But whatever its condition and prospects might have been, it, like all other ungrown crops, was exposed to adverse contingencies, and its value could not, we think, properly be estimated upon the basis of the proven value of some other crop which matured, because the very fact that it was exposed, and was involved in more or less uncertainty, detracted from its value as it stood at the time of the injury, and we are confined in our estimate to that time. In other respects also we think that the evidence admitted was unreliable. It appears from the evidence that the corn which was destroyed was upon low ground. The neighboring fields of corn which matured must, we think, have been upon higher ground. Now if the season was already wet, as we infer, at the time of the injury, it seems to us that the comparison sought to be made was an unsafe one, and that the evidence should have been excluded. It was proper to show any fact or circumstance pertaining to the condition and prospects of the crop, so far as the same were discoverable at the time of the injury, because such facts and circumstances affected the value of the premises at that time. The jury was entitled to consider whatever it may be presumed would have been considered by a careful person desiring to buy. Looking at the premises in this way, as they were im |