"While it is true that the complaint contained a prayér for such relief as might be just and equitable and that the plaintiff’s counsel in the discussion, had before the court at the opening of the trial, claimed that this was an action for permanent injury to the land, yet at the end of that discussion he conceded that it was an action at law solely and only and defendant’s counsel rested upon that concession and consented to the impaneling of a jury and the action proceeded and was tried as an action at law. The plaintiff by this concession waived her prayer for equitable relief and the court was right in thereafter applying the principles that govern the trial of actions at law. The principle is too well settled to require the citation of authorities in support thereof that in an action at law only such damages as have been suffered prior to the commencement of the action can be recovered, and, therefore, that permanent or fee damages for the continuance of a nuisance or trespass, which involve damages after as well as before the action was commenced, can only be recovered in an action in equity.
*133The jury have found by their, verdict that the maintenance of defendant’s dam has caused or contributed annually to the flooding of plaintiff’s premises to her damage. This is equivalent to a finding that the flooding is unlawful and we have no right to presume that it is to be permanent, because the law will not presume that the defendant will continue an unlawful act.
The question of the proper rule of damages in an action at law to recover damages for a nuisance was discussed at length, with a review of the leading authorities, in this country and in England by Earl, J., in the case of Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98), and the rule was there laid down that in such an action damages can be recovered only up to the commencement of the action, and that the propei* measure of damages was the difference in the rental value of the property before the commencement of the nuisance and afterwards during its existence down to the time of the commencement of the action. That was just the rule applied by the court in this case. The reason for the rule is plain, that the action being at law for the recovery of money only, a judgment therein cailnot operate as a bar to an action in equity for injunctive relief, nor to successive future actions for damages. The ruling of the court, therefore, excluding evidence as to permanent damages, and in its chargé to the jury upon the question of damages, was correct.
What has been said also disposes of the contention of the plaintiff, that the court erred in not granting the motion for a provision in the judgment directing a removal of the nuisance under section 1662 of the Code of Civil Procedure, for that section does not apply to an action at law, for it is expressly provided in section 1663 of said Co'de that it shall not apply where the complaint demands judgment for a sum of money only. The concession made by the plaintiff’s counsel at the opening of the trial, that the action was one at law, was equivalent to the elimination from the complaint of the prayer for equitable relief and left the action to proceed as one at law for the recovery of money only.
The appeal by the plaintiff, therefore, cannot be sustained.
The defendant insists that the verdict is against the evidence and the weight of the evidence.
The theories of the expert engineers, sworn for the plaintiff and *134the defendant, were widely at variance as to whether the elevation of the crest of the dam was sufficient to set the water back in times of high water and thus to cause the damages complained of to the plaintiff. The defendant’s engineer, it is true, gave very forceful reasoning in support of his theory that it was impossible for waters to be set back by this dam to a height sufficient to cause any damages to plaintiff’s property. Yet if we cast aside the theory and the reasoning of the plaintiff’s engineer to the contrary, we think there was sufficient evidence on the part of lay witnesses sworn for the plaintiff as to the creation of a pond by the dam where before had been rapids, as to the formation of thick ice on the pond resulting in ice gorges in the spring and setting the water back, where before no ice, or only thin ice, had been formed, as to the flooding of the plaintiff’s property since the erection of the dam and as to its never having been flooded before its erection, except upon one or two instances of very severe freshets, which was in conflict with the evidence of the lay witnesses on behalf of the defendant, to the effect that there has been no substantial flooding of plaintiff’s land there before or after the erection of the dam, to render the question clearly one for the determination of the jury, and we are not prepared to say, after examining the testimony, that the verdict has not sufficient evidence to support it.
The judgment should be affirmed, without costs of the appeal to either party as against the other.
Chase, J.,concurred in result.
Judgment and order unanimously affirmed, without costs of the appeal to either party as against the other.