delivered the opinion of'the court.
.It.appears that in 1903 the defendant railway company installed upon Lockett’s creek, in the county of Prince Edward,. *430a steam pumping station for the purpose of supplying a tank on its right of way with water for locomotive purposes. It further appears that the plaintiff owned a corn and flour mill on Falling creek, into which Lockett’s creek empties, about one-half mile below the defendant’s pump. On July 2, 1912, the plaintiff instituted this action, alleging that from July, 1907, to the bringing of this suit, the defendant had been pumping from the stream and diverting its waters from their usual course to such an extent as to seriously and injuriously interfere with the operation of the mill, and asking for compensation in damages for the injury thereby sustained.
The defendant pleaded the general issue and filed three pleas of the statute of limitations. The first is in the usual form, while the additional pleas, Nos. 2 and 3, set out with great elaboration the defendant’s view of the case.
There was a verdict and judgment for the plaintiff, which is brought under review by this writ of error.
The controlling question in the case was whether or not the demand of the plaintiff was barred by the statute of limitations, the determination of that question depending upon when the plaintiff’s cause of action arose.
The contention of the defendant was that its tank and pumping station constituted a permanent structure, and, therefore, that suit to recover damages resulting from its operation must be brought within five years from the commencement of the operation of such structure, otherwise the right to recover was barred. This contention was presented by the pleas of the statute of limitations and also by instruction No. 2 asked for by the defendant, which was refused. This instruction told the jury that “if the pumping house and tank and the pipes connecting the tank with the water in Lockett’s creek were built in 1902 or 1903, although they may have been repaired in the meantime, and have been in continuous use from that time down to the institution of this suit, and that the said structures were permanent in their character, then the plaintiff *431could not recover, the court instructing the jury that the plaintiff should have brought his suit within five years after the completion of the structures, if permanent in their character, and in that one suit he was entitled to recover his entire damage, both past, present and future, and that the claim would be barred by the statute of limitations.”
We are of opinion, that the court did not err in striking out the additional pleas Nos. 2 and 3 of the statute of limitations. Without commenting upon other objections to these pleas, it is sufficient to say that they were superfluous and unnecessary. As already seen, there were three pleas of the statute of limitations, whereas any facts provable under either of the rejected pleas were equally provable under the plea of the five years’ statute which was not stricken out.
“The multiplication of pleas multiplies issues, and the mul-' tiplication of issues tends to embarrass and confuse juries and to defeat the ends of justice. Courts do not, therefore, favor the practice of multiplying issues by unnecessary' pleas, and it is not error to exclude a plea which presents a defense which may be made under a plea already in.” Guaranty Co. v. Bank, 95 Va. 481, 490, 28 S. E. 909.
We are further" of opinion that the court did not err in refusing instruction No. 2 which was asked for by the defendant. There was no evidence to support such an instruction and under the facts shown of record it was wholly irrelevant and misleading. The uneontradicted evidence shows' that the plaintiff suffered no damage prior to the year 1907 by reason of the erection or operation of the defendant’s pumping station. This fact is emphasized by the proof adduced by the defendant, in support of its contention that the plaintiff had suffered no damage at any time, either before or after the year 1907. Whether or not the tank and the pump connected therewith constituted a permanent structure was an immaterial question in this case. The erection of these structures by the defendant upon its own premises was lawful and harmless,.- however .permanent its *432character, affording the plaintiff ho cause of action whatever. Diverting the water by the operation of the pump was the cause of the plaintiff’s injury, and the defendant’s own evidence shows that this operation was not continuous, hut only at intervals, thereby inflicting a new injury with each operation.
It is well settled that when a permanent structure is unlawful in'and of' itself, irrespective of any damages which flow from it’, a' cause of action accrues at once upon the eléction of the unlawful structure, and the plaintiff may recover once for all, hut when a structure is lawful, as when it is erected on the defendant’s own premises, and is not per se injurious to the plaintiff, then the plaintiff’s cause of action arises not from the erection of the structure, but only for such injury as may result from the use of the structure. In other words, a thing which is lawful is not actionable until the plaintiff has suffered injury on account of it. A single suit, under the facts of this casé, could not he made to embrace future damages for the reason that it cannot be assumed that the defendant-will continue to illegally inflict injury upon’the plaintiff. To indulge such á presumption might result in awarding the plaintiff damages for an injury never suffered by him. Hot Springs Co. v. McCray, 106 Va. 461, 56 S. E. 216, 10 L. R. A. (N. S.) 465, 10 Ann. Cas. 179; American Locomotive Works v. Hoffman, 108 Va. 363, 61 S. E. 759, 128 Am. St. Rep. 953; Virginian Ry. Co. v. Jefferies, 110 Va. 471, 66 S. E. 731; Southern Ry. Co. v. McMenamin, 113 Va. 121, 73 S. E. 980; Va., etc., Power Co. v. Ferebee, 115 Va. 289, 78 S. E. 556.
The Hot Springs and the McMenamin cases, supra, which are relied on by the defendant, are wholly different in'their facts and are easily distinguished from the present’ case. The discussion of the law in those cases is, however, helpful and, so far as applicable, sustains the principles herein announced.
It is clear from the evidence that no cause of action accrued to the plaintiff from the operation of the defendant’s pump until July, 1907, about which time- larger pipes were installed *433by the defendant in connection with its pnmp, which carried off from the stream greater quantities of water than before, thereby crippling for the first time the operation of the plaintiff’s mill. It is further plain, under the established facts, that this case belongs to the class where the plaintiff is entitled to maintain successive actions for the damages sustained from time to time. This being so, the plaintiff’s right of recovery is not barred, but is limited by the statute to the damages sustained during the five years immediately preceding the institution of this suit.
Upon the whole case, we find no error to the prejudice of the defendant, and the judgment complained of is, therefore, affirmed.
Affirmed.