of what must constitute substantially one continuous structure, the plan adopted must necessarily have reference to the situation and rights of all in the accomplishment of the general purpose of the public accommodation; and neither can be compelled to surrender its property or change its route further than is reasonably necessary for such purpose. The plan proposed by the appellant appears to be one framed chiefly for its own accommodation and the convenient transaction of its business, -a bridge for its own tracks, with provisions for the track of the other company and connections; and, had. its interests required a different plan, still other and further changes in the line of the St. Louis Company might have been necessary. And so, under other circumstances, it might be met by a counter-plan of the other company, requiring as radical changes on its part; and, if the court could arbitrarily interfere in one case, it could in another. Nor do we see that any different rule could be applied if the defendants were united in one equitable suit. And, while each corporation will be compelled to perform its duty in the restoration of the crossing, yet, in attempting to adjust the rights of the parties between themselves in such an action, there would be the same limitations upon the power of the court, in respect to their separate legal rights to real property. The court would have to be governed by the same rule in enjoining a suitable crossing, and the modifications in grades or lines must be such as necessarily result from the application thereof. The relator brought the two cases to trial in the court below at the same time, and the trials proceeded pari passu, and a full hearing of the whole case has been had without objection. In this court, the relator, representing the public, is satisfied with the judgment, and insists that the question raised, and chiefly argued by the appellant, is one entirely between the two companies, and in no way affects the right of the city to insist upon the plan proposed by it, and therefore declines to argue that question here. Right of It is also urged by the appellant that the tenure of the St Louis Company to the land upon which its track is situated is such that it has no right to change the grade of its tracks without the consent of the appellant. This is a question to be raised in the proceeding against that company; but it does not in any event go to the merits, since the court can, by operating directly upon both companies alleged to be interested in the land, compel obedience to its mandate in a proceeding against both, if it be necessary. And since, as held by the trial court, the duty of the St. Louis Company to restore the crossing is an absolute one, it will be for that company to secure such additional land or rights, or make such changes, as may be necessary to effect that result, or abandon the crossing. So far as the record discloses, no objection was raised in the court below to the form of the proceeding, or because of the absence of necessary parties; and we know of no reason why the case has not been fully and fairly investigated, and a just and legal determination of the rights of the parties reached. And while, doubtless, the public convenience and that of the companies would be promoted by an amicable arrangement or compromise between them, we are unable to say that the court mistook the law, or erred in its application to this case. Order affirmed, and case remanded for further proceedings. MITCHELL, J. (dissenting). It seems to me, that, if language means any thing, there is no evading the fact that the decision of the court below is based expressly and exclusively upon the proposition that it had no power to adopt any plan of bridging these streets which would involve the necessity of the Minneapolis & St. Louis Railroad Company changing the alignment of its tracks, unless it consented to do so, and that, if the court had believed that it had such power, it would, to use its own language, not have hesitated to exercise it as for the best interests of all concerned, and adopted the plan suggested by the appellant. In this, I think, the court erred. It may be true that the court might not have had the right to directly command that company to locate its track at any particular locality: but inasmuch as the duty of the company to restore the street to a condition suitable for use of the public is an absolute one, the court had a right to compel this to be done in such manner as would best subserve the interests of all parties; and if this involved the necessity of the Minneapolis & St. Louis Company moving its tracks, or securing more ground to enable it to perform its duty to the public, that is its own concern. It must perform its duty to the public, or abandon the crossing. I think the judgment should be reversed. CHICAGO, BURLINGTON, & QUINCY R. Co. ข. SCHAFFER. (Illinois Supreme Court, March 28, 1888.) Railroad Bridge - Defective Construction-Damages-Res Adjudicata. - In an action against a railroad company to recover damages to plaintiff's land by the overflowing of a stream caused by the improper and negligent construction and maintenance of a railroad bridge, a judgment in a former suit is no bar to a recovery for injuries sustained subsequently to the rendition thereof. Same Parol Evidence to explain Judgment. In such suit, where the judgment offered in evidence as a bar does not show the full and true state of the matters litigated, parol evidence may be given to show the extent of the recovery thereunder. APPEAL from Appellate Court, third district. Action to recover damages for obstructing the natural flow of a water-course. The opinion states the case. J. F. Carroll for appellant. Carter & Govert for appellee. Facts. MAGRUDER, J.-This is an action of case, begun on Sept. 22, 1885, by the appellee against the appellant company, in the Circuit Court of Adams County, to recover damages for obstructing the natural flow of water in a certain water-course called "Harkness Branch," by maintaining a certain railroad bridge over said branch so as thereby to throw the water upon plaintiff's land, and injure the same, and the growing crops thereon. Pleas of the general issue, statute of limitations, and leave and license, were filed to the declaration. There was no special plea setting up the judgment hereinafter named as a bar. The trial resulted in verdict for $500 in favor for plaintiff, and judgment thereon; which judgment has been affirmed by the appellate court. On Oct. 8, 1883, William Schaffer, the present appellee, brought against the Chicago, Burlington, & Quincy Railroad Company, the present appellant, a suit for damages resulting from the overflow of water in this same branch, alleged to have been caused by constructing and maintaining this same bridge; which suit resulted in a verdict for $600 in favor of Schaffer, and a judgment upon said verdict rendered on May 5, 1884. The amount of this former judgment was paid to appellee by the railroad company on July 17, 1885. Upon the trial of the present suit the railroad company introduced in evidence the record of the former suit, including the præcipe, summons, pleadings, verdict, judgment, and Schaffer's receipt for the amount of the judgment, and claimed that the verdict and judgment in such former suit constituted a bar to any recovery in this suit. The certificate of the judges of the Appellate Court, by reason of which the case is brought before us, certifies that in their opinion "this case involves a question of law of such importance, on account of principal interests, as that it should be passed upon by the Supreme Court; that is, whether the former judgment between the parties is a bar to the present action, it appearing from the evidence that the structure complained of was imperfectly built, and that there was negligence in the mode of the construction of said bridge." While this court cannot be confined to the consideration of a particular question that is specified in the certificate of importance, but, after the granting of such certificate, may Question for consider any question of law properly arising upon decision. the record, yet the only question which we deem it necessary to discuss in the case at bar is whether or not the judgment in the former suit between these same parties is con- . clusive of the issue in the present suit; it being admitted by the counsel for appellant, in their brief, that this is "the main question, and the real bone of contention, between the parties in this case." Defective con struction of That this bridge was improperly constructed, so as to obstruct the free passage of the water in Harkness Branch, is a question of fact, which is settled by the judgment of the Appellate Court. The bridge was built upon piles, and was not a truss bridge, such as might have been bridge. built so as to leave the stream unobstructed. The piles were set at an angle to the current of the stream, and not in line with the current. The caps upon the piling were set obliquely to the line of the stream. The piles were from one foot to fourteen inches in diameter, and about five feet apart. The timbers of the bridge, the caps, rails, ties, and stringers, were so arranged as to largely reduce the space for the water to pass under the bridge. The results of all these defects were, that brush, logs, and other drift could not pass through without obstruction, and were caught and held; that the channel of the branch filled up with gravel, sand, and sediment under the bridge, and for some distance east and west of it, thereby lessening the depth of the channel; and that in times of freshets the water should be deflected from its natural course, and would overflow upon the land of plaintiff and other adjoining owners. Entireness of recovery in one action. Appellant claims that the injury resulting from the construction of the bridge was a permanent one, and depreciated the value of appellee's land, and consequently that all damages for past and future injury to the property either were or might have been sued for and recovered in the former suit, and that such former recovery is a bar to any further prosecution for the injury resulting from the erection and continuance of the nuisance. In other words, appellant invokes the aid of the doctrine laid down by this court in Railroad Co. v. Loeb, 118 Ill. 203; s. c., 27 Am. & Eng. R. R. Cas. 415, and in other cases therein referred to. But the " doctrine as to entireness of recovery in one action, where the cause of injury is of a permanent kind," is "limited to the case of a railroad built under authority of law, and in a reasonably proper and skilful manner, so as to avoid the infliction of all loss and injury not necessarily resulting from the building and operating the road." Railway Co. v. Wachter (opinion filed at Mt. Vernon in January, 1888). In the case at bar the bridge was not built "in a reasonably proper and skilful manner," and the loss and injury have resulted from its improper construction. We said in the Wachter case, "This court has never held, nor is it prepared to hold, that a railroad company is not liable for damages resulting from its negligence, either in the construction, maintenance, or operation of its road. Public health and convenience, as well as the positive law of the State, alike demand that railways leading over natural streams and drains should, by means of efficient and substantial culverts or otherwise, be so constructed as to admit the escape of accumulating waters through them in times of high water as well as low." In the case at bar the proof tends to show, that, before the erection of the bridge complained of, the water in Harkness Branch did. overflow its natural banks, even in time of high water, at the point where it passed appellee's land. Appellant's right of way crossed the branch. The construction of a bridge over the branch was necessary to the operation of appellant's road. If the bridge had been properly built, whatever injury it may have caused to appellee's land would have been the necessary result of the existence of a necessary public improvement, and would have been permanent in its character. The effect of the construction of the bridge upon the value of the land could be estimated at once, and it would answer all just purposes to allow but one action for the recovery of all damages. But where the bridge has been imperfectly built, and there has been negligence in the mode of its construction, the party whose property is damaged is not bound to assume that the structure will be a permanent one. To indulge in such assumption would be to take it for granted that the |