dissenting:
I concur in the majority opinion in its positions on the following points, namely: As to its being immaterial before which branch of the court the motion to set aside the verdict and award a new trial was made, since the same judge presided over both; as to how the evidence must be regarded by us on the motion to set aside the verdict of the jury on the issue out of chancery; as to there being no *619duty upon the appellees to minimize damages; as to the impropriety of counsel in any case going outside of the record and making use of language calculated to inflame the minds of the jurors and induce a verdict not founded solely on the evidence .adduced- before them. But—
I cannot concur in the majority opinion in taking the following positions, namely: (1) that the permission of the trial court of the remarks of counsel in the case before us was reversible error; or (2) that this was not a case in which it was proper for the jury to take into consideration the allowance of exemplary damages; or (3) that the measure of damages for the future injury to appellees was the difference between the market'value of the mill property before and after the injury; or (4) that the verdict of the jury awarding the future damages it assessed was without evidence to support it; and hence I am forced to dissent from the conclusion reached by such opinion in its reversal of the case. The reasons which constrain me to take a different view from the majority of the court upon the four subjects mentioned. will be stated in their order below.
(1) I do not think that the remarks of counsel set out in the majority opinion constituted reversible error in the case because of the following considerations:
(a) Such remarks, going outside of the record, were improper and subject to objection in the trial court. But when such objection was interposed, it should, as in the case of other objections to matters of procedure or the conduct of the trial, have stated the ground - of the objection. In the instant case, as will be noted, the ground of objection stated before the trial court was not that the appeal to the jury was “inflammatory,” or “unjust,” or “deserving of stem rebuke” (the objection made before us on appeal), nor any objection to that effect. The only objection made was that it was not a case where exemplary or puni*620tive damages might be allowed. The trial judge naturally-passed and ruled only upon the objection made. The further objection aforesaid was not made at all, not even in the motion to set aside the verdict and grant a new trial, nor was it passed upon by the trial judge, but is urged before us for the first time.
This subject is governed by the same rule of procedure which is applicable to other errors of procedure which may be committed in the trial of a case. “Such a line of argument” may be the subject of review on appeal “if proper objection be made .to it at the proper time and the trial court fails to take proper steps to correct its ill tendencies. * * *” Southern Ry. Co. v. Simmons, 105 Va. 651, 666-7, 55 S. E. 459, 464. But if the objection made in the appellate court was not made in the trial court, and the trial court was not asked to rule on or instruct the jury upon such objection, the objection cannot be considered on appeal. State v. Clifford, 58 W. Va. 681, 52 S. E. 864; Landers v. Ohio River R. Co., 46 W. Va. 492, 33 S. E. 296. And the same principle upon which rests the rule that where a specific objection to the admission of evidence is properly overruled by the trial court, other objections cannot be thereafter assigned as error on appeal (Richmond Ice Co. v. Crystal Ice Co., 103 Va. 465, 49 S. E. 650; Warren v. Warren, 93 Va. 73, 24 S. E. 913), applies to the objection in question in the cause before us. It seems to me, therefore, that for this reason such objection cannot be considered by us. Further:
(b) According to the salutary rule of this court, now firmly established, it must affirmatively appear from the record that an error has been prejudicial to an appellant, otherwise the error must be considered by this court as having been harmless and is not ground for reversal. Standard Paint Co. v. Vietor & Co., 120 Va. 595, 91 S. E. 752.
*621On this subject, the trial judge and chancellor, in his opinion made a part of the record, says: “Allusion has been made to the fact that the jury may have included punitive or exemplary damages in their verdict. I think the size of their verdict makes it manifest that they did not do this, although I think that they might have considered doing this, as, the court informed them that a persistent trespasser upon the rights of another, particularly after those rights have been judicially determined, does not stand upon the footing of an ordinary trespasser. I think it is apparent from the evidence that the jury put into that verdict nothing except what they thought was necessary to compensate the plaintiffs for the actual injuries which they have sustained or may sustain in their business and property both in the past and for the future, and speaking now as chancellor and not as a law judge, I say that they have not given them one dime- more than I would have done after hearing the evidence, had I determined the matter without a jury."
The verdict of the jury was merely advisory of the chancellor. The decree, after all, is what must be looked to in order to ascertain whether exemplary damages or excessive damages have been awarded; and the chancellor has certified that the decree did not award any such damages but only proper compensatory damages.
Further, on the question of whether the damages assessed by the verdict of the jury and decreed by the chancellor were excessive: As I view the evidence, as hereinafter stated, there was ample evidence to support the verdict and decree for the amounts of damages allowed as purely compensatory damages.
Hence, it seems clear that not only does it not affirmatively appear that the decree complained of included exemplary or excessive damages, but the contrary appears from the record. Therefore, if there was error in the permission of the remarks of counsel, it was harmless error.
*622(2) As to the position aforesaid that this case was not one where the allowance of exemplary or punitive damages might have been considered by the jury:
Appellant does not. question that if the cause before us had been an action at law, exemplary or punitive damages might have been recovered under the rule laid down in 2 Blackstone’s Com. 220, as follows: “Indeed, every continuance of a nuisance is held to be a fresh one, and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardihood to continue it.”
And this is true of all repeated trespasses and repeated torts. 8 R. C. L., section 133, page 588. The existence of actual malice or ill will on the part of the defendant is not necessary to warrant the allowance of exemplary damages against him. The existence of “malice in law” is sufficient, and exemplary damages may, in the discretion of the jury, be assessed in all cases of trespasses and torts where the conduct of the defendant is “a wrongful act, done intentionally, without legal justification or excuse.” Note to-16 L. R. A. (N. S.) 440. As said in 8 R. C. L., supra: “Willfully to commit a trespass upon the rights of an individual is of itself sufficient to permit the awarding of punitive damages, though committed on but one single occasion; and especially may such damages be allowed when the trespass is repeated. Thus, where a recovery has once been had for a nuisance, and it is continued, exemplary damages are allowed as a matter of course upon a second successful suit * * *”
Hence, I must say, with great deference, that I think the majority opinion in its discussion of the subject under consideration ignores the well settled rule above adverted to, that actual malice in fact need not exist in order to warrant a jury in considering the allowance of exemplary or punitive damages. If malice in law exists (which was true of *623the instant case, as above pointed out, and as indeed follows from the statement in the majority opinion that the defendant “was no less a trespasser because it intended to exercise its right of eminent domain * * *,” since, that being so it was a repeated trespasser), it was sufficient to bring the case within the operation of the rule that the jury might have considered the allowance of such damages.
And appellant does not, in the able argument of learned counsel in the petition or brief, or orally before us, controvert the correctness of the above conclusion, except upon one ground, namely: It contends that the awarding of exemplary .or punitive damages is not a function of a court of equity. The case of Karns v. Allen, 135 Wis. 48, 115 N. W. 357, 15 Ann. Cas. 543, is the only authority cited and relied on in support of the position that such a court will not award such damages, but only compensatory damages. In that case the plaintiffs, by their bill, sought the aid of a court of equity, not only to abate a nuisance, but also to recover the damages sustained by .reason thereof. That case denied the recovery of exemplary damages in equity on the ground (to quote from the opinion therein) that, “* * * where one comes into a court of equity he waives his claim for punitive damages * * * the plaintiffs had their election to sue at law or in equity. They elected to sue in equity, and having done so, they brought themselves within the rules of equitable actions and waived the right to recover exemplary damages.” The authorities referred to in that case, which sustain its said holding, place the distinction between the right of recovery of exemplary damages at law and in equity on the same ground, and the recovery of such damages is denied in a court of equity on the ground that the plaintiffs have themselves sought the. aid of that court to recover damages. It was not so, however, in the cause before us. In the case before us, the appellees elected to sue at law and did sue at law for damages. By their bill *624in equity they prayed only for the equitable relief of the abatement of the nuisance caused by the conduct of the appellant. They did not pray that the court of equity should assess any damages ancillary to that relief or otherwise. As appears from the decree of December 4, 1016, hereinafter quoted from, the relief sought by appellees in equity was only that the court would “award the injunction as prayed for in the bill,” and it was “upon the defendant’s (appellant’s) motion that the court enjoin and restrain the plaintiffs’ (appellees’) action at law now pending in this court to recover damages * * *” that the court below refused the injunction prayed for by the appellees and took jurisdiction on its chancery side “to do complete justice to the plaintiffs herein and to avoid a multiplicity of suits * * *” In the cause before us, therefore, the plaintiffs in the court below (the appellees here), were, on motion of the defendant there (the appellant here), denied the exercise of their election to sue at law for their damages and were forced against their will to have the same assessed in a court of equity. In such a case it would be inequitable to deny to the, appellees the benefit of the rule aforesaid which would have been applicable in their action at law (and in the repeated actions they might have thereafter brought), and hence I think that the objection made by appellant that this is not a case in which exemplary or .punitive damages might have been allowed by the jury was not well taken.
The majority opinion on the subject under consideration, rests, essentially, upon its view that the case before us must be considered as if it were a proceeding to condemn the water rights in question.' It assumes that procedure in the court below by which it took jurisdiction to award future as well as past damages to the appellees, was an arrangement made to settle the controversy between the parties in lieu of condemnation proceedings, and, in effect, *625that such arrangement was accepted and assented to by the appellees. With the utmost deference, I must say that I can find nothing in the record to bear out such an assumption.
The record in the case shows that on December 4, 1916, the following order or decree was entered in the court below:
“This cause came-on this day to be again heard on the papers formerly read, to-wit, bill and depositions in support thereof, the answer thereto, the affidavit of A. Bruner in support of said answer, and on the plaintiffs’ motion to award the injunction as prayed for in the bill, and upon the defendant’s motion that the court enjoin and restrain the plaintiff’s action at law now pending in this court to recover damages of the defendant for the injuries caused the plaintiff by the diversion, by the defendant, of the water of Falling creek and its tributaries from July 3, 1912; and the court having heard the argument of counsel on October 10, 1916, when this matter was first presented to it and not then being advised of its judgment, did take time to consider thereof and adjourned the further hearing thereof until the first day of November, 1916, term, and upon the day last mentioned, the court doth adjudge, order and decree as follows:
“That the injunction prayed for by the plaintiffs be and the same is hereby refused, because the defendant is shown to be a common carrier, and the inconvenience to it in granting said injunction would far outweigh the benefit to the plaintiffs in awarding the same, also because since the trial of the common law cause in this court between the above parties, it is shown that the defendant has built a new line which diverted a large part of its traffic around the water tank in question, and it is not shown what damage, if any, is done to the plaintiffs under these conditions, and further, because this court, on its chancery side, hav*626ing complete jurisdiction of the parties and the subject matter, may do complete justice to the plaintiffs herein and avoid a multiplicity of suits, and, therefore, the court doth decide to assume such jurisdiction on its chancery side, and to the end that it may be further advised as to its judgment, doth order that a jury be empaneled at the bar of this court, which jury is directed to report unto this court for its consideration the findings of -said jury upon the following issues, to-wit:
“First: What sum of money, if any, the plaintiffs should recover as damages for the diversion of the water by the defendant from Lockett’s creek from the third day of July, 1912, to the date of the trial of this issue; and
“Second: What damages, if any, will the plaintiffs sus-' tain in future by the continued diversion of water by the defendant from said stream.
“And the court doth further adjudge, order and decree that the plaintiffs be restrained from the further prosecution of their action for damages against the defendant on the common law side of this court, pending the proceedings above directed upon the chancery side of this court.”
Thereafter, the decree complained of was entered on December 8, 1916, allowing the appellee the damages set forth in the majority opinion, and perpetually enjoined and restrained the appellees from suing the appellant at law for future damages in the premises.
It is true that counsel for appellant states, both in his brief and in oral argument, that the appellant intended to institute condemnation proceedings, and counsel for appellees did not deny that statement. But appellant did not, as a matter of fact, institute condemnation proceedings. Nor does it appear that the court below took jurisdiction to award damages past and future in lieu of condemnation proceedings, nor that appellees by counsel or otherwise assented to its taking such jurisdiction in lieu of condemna*627tion proceedings. On the contrary it appears from the order or decree of court above quoted that the court below took such jurisdiction in lieu of allowing repeated actions at law and in lieu of awarding the injunction prayed for by appellees.
(3) As to the “market value” measure of damages being applied as the measure of the future damages:
The position of the majority opinion on this point also rests upon the assumption aforesaid, that this practically is a case of .a condemnation proceeding by appellant to take the water right aforesaid for public use, under the exercise by it of the power of eminent domain granted to it by legislative authority. But, as aforesaid, this is not such a case. As stated in the majority opinion itself: “The railway company was no less a trespasser because it intended to exercise its right of eminent domain than if it had entertained no such intention. Norfolk & Ocean View Ry. Co. v. Turnpike Co., 111 Va. 131 [68 S. E. 346, Ann. Cas. 1912 A, 239].” The same measure of damages should therefore be applied to the injury caused by such trespasser as is applicable to the same character of injury caused by any other trespasser according to the well settled rules of law on the subject.
Now,, in the instant case, the damages to which the plaintiffs were entitled were such as they were entitled to recover by succeeding actions for temporary injury or temporary damages. They were forced into a court of equity on the subject of damages by the defendant, and that court exercised its jurisdiction to award to the plaintiffs all the damages which they were entitled to recover at-law, so as to afford them full relief in allowance of damages, having enjoined the- prosecution by plaintiffs of their pending and the institution by them of any succeeding action at law to recover the damages in question. In such case it seems plain that the measure of damages in the case before us must be the same as they would have been in the pending *628and in succeeding actions at law, which, but for such injunction, the plaintiffs would or could have prosecuted. For the measure of damages in such cases, we must look to the common law rule on the subject.
Now it is the settled rule of the common law that in ac-. tions for temporary injury or temporary damages, such as we have under consideration, the measure of damages is the loss sustained by the plaintiff in deprivation of the use or usable value of the property, and the “market value” rule of measure of damages is not applicable. 8 R. C. L., section 51, 53, 67, 68; 2 Farnham on Waters, section 510; Norfolk County Water Co. v. Etheridge, 120 Va. 379, at page 382, 91 S. E. 133; McHenry v. City of Parkersburg, 66 W. Va. 533, 535, 66 S. E. 750, 29 L. R. A. (N. S.) 860. Loss of net profits is a proper element for consideration in applying such measure of damages. 8 R. C. L., section 67 68 ; 2 Farnham on Waters, section 510. Lost profits or lost gains are as recoverable as any other loss, if proved with reasonable certainty. Burruss v. Hines, 94 Va. 413, 26 S. E. 875. The result of the injury complained of in the instant case was to deprive the plaintiffs in error of the use of water to drive their mill to the extent of a certain amount of horse-power.
Therefore, the market value of such horse-power, or the expense of replacing it, was proper evidence for consideration in applying the measure of damages aforesaid. Waston v. Boston Railroad, 190 Mass. 298, 76 N. E. 1050, 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330, 5 Ann. Cas. 825. “The law adopts that mode of estimating damages which is most definite and certain” in the particular case. Griffin v. Colon, 16 N. Y. 489, 69 Am. Dec. 718. And as to future damages the value of the horse-power lost was more definite and certain than an estimate of future loss of profits.
Of the cases cited in the majority opinion on the point under consideration, those of Hunter v. C. & O. Ry. Co.; *629Burger v. State Female Normal School; and Richmond, etc., R. Co. v. Chamblin, were cases involving condemnation proceedings actually instituted; that of Richmond, etc., R. Co. v. Humphreys was an action for permanent damages; that of Norfolk County Water Co. v. Etheridge, in so far as it applied the “market value” measure of damages, was an action for permanent damages; that of Virginia R. Co. v. Hurt did not involve or pass on the question under consideration; and that of McHenry v. City of Parkersburg is directly against the holding of the majority opinion now being considered, in that. it expressly holds, at page 535 of 66 W. Va., at page 751 of 66 S. E. (29 L. R. A. [N. S.] 860) : “Injury to real estate differs in nature and degree. * * * The injured party is limited to the recovery of temporary damages, when the injury is intermittent and occasional * * as is true in the instant case, as pointed out in the majority opinion; and in that case the court below was reversed for applying the “market value” measure of damages to a case of intermittent or occasional injury such as is the nature of the injury in the case before us.
As to the text-writers cited in the majority opinion, and other text-writers on this subject, they sanction the application of the “market value” measure of damages to cases of permanent injury to real estate only, or where the damages are assessed in a condemnation proceeding, or in cases in which the plaintiff’s right of action does not exist at common law, but is dependent upon a constitutional guarantee against his property being taken for public use without “just compensation;” in which latter cases the measure of damages is governed by the constitutional and statutory provisions of the particular jurisdiction on the subject. See 2 Lewis on Em. Dom., sections 687, 689, 696, 752, 890, 891; Tidewater R. Co. v. Shartzer, 107 Va. 562, 567-8, 59 S. E. 407, 17 L. R. A. (N. S.) 1053.
(4) As to the verdict of the jury for future damages being without evidence to support it:
*630As this is a minority opinion, it would serve no useful purpose for it to enter upon any discussion of this pure question of fact, sincé no difference with the majority-opinion on any legal question is involved therein. It is deemed sufficient to say here that, as I view the record, it contains ample evidence to support the verdict and decree for the future damages allowed, the weight and credibility of which was for the consideration of the jury so far as their verdict was concerned. Barbour v. Melendy & Russell, cited in the majority opinion; and see also, Carter v. Campbell, Gilmer (21 Va.) 159; Almond v. Wilson, 75 Va. 613, 626; Fishburne v. Ferguson’s Heirs, 84 Va. 87, 102, 4 S. E. 575; Muse v. Stern, 82 Va. 33, 35, 3 Am, St. Rep. 77; Mears v. Dexter, 86 Va. 828, 832-3, 11 S. E. 538.
For the reasons stated above, I am constrained to dissent from the majority opinion.