ON REHEARING.
Beck, J.Upon the announcement of the decision of this case in the foregoing opinion, plaintiff presented his petition asking for a rehearing, which was granted, and the cause was again submitted to us upon new arguments on behalf of both parties. We have given the questions, both of law and fact, upon which our conclusions presented in the foregoing opinion are based, such careful and patient consideration as their importance and the importance of the case demands. We have been able to reach no other conclusions than those stated in our first opinion. The positions of plaintiff, presented in the petition for rehearing, and his argument thereon demand brief consideration.
- The pivotal legal principle announced in the foregoing opinion we do not understand counsel for plaintiff to controvert. Certainly, we are of the opinion, it cannot be successfully controverted. Counsel, however, deny its applicability to this case. This principle is announced in the opinion in the following language, quoted from an authority referred to: “ Whenever the nuisance is of such a character that its continuance is necessarily an injury, and when it is of a permanent character that will continue without change from any cause but human labor, there the damage is an original damage and may be at once fully compensated.’-’
' After the ditch was constructed and the water of the creek first began to work upon plaintiff’s land, its continuance was just as certain as that water would flow in the creek unless changes were made therein by human hands. Its continuance would just as certainly be an injury as that the floods of the creek would wash the soil and earth through which the ditch was dug. It follows that plaintiff’s cause of action then accrued for all injury sustained, or that in the future would be suffered. The very cause of action for which this suit was brought then existed.
*660Counsel for plaintiff insist that the application of the statute of limitations to the case involved certain questions of fact upon which plaintiff had the right to have the verdict of the jury, and that the court, therefore, erred in taking the case from the jury and directing a verdict for 'defendant. These questions relate to: 1. The permanence of the ditch; 2. Con-^ tinuance of the injury; 3. The date of the beginning of the injury. That these questions were involved in the determination of the case cannot be denied, and that the court in determining each favorable, to the defendant correctly decided we do not doubt. No other conclusion could have been reached than that the ditch would have continued, unless changed by human hands, as long as the creek exists, and that it would continue to wash away the lots of plaintiff. This conclusion is established without conflict in the evidence, and is consistent with and required by the very nature of the soil, the character of the creek and other things connected with the case.
■ The same is true in regard to the other question of fact, namely, the date of the beginning of the injury. The evidence shows beyond dispute that the first injury was sustained by plaintiff in 1866. He so testifies; other witnesses so testify; no witness gives evidence contradictory thereto, and counsel for plaintiff in their first argument in this court admit it. The period of the limitation of this action, beginning in 1866, expired before the suit was commenced. Under this state of facts the action of the court in directing a verdict for defend- . ant was correct.
4. pkactice.* may^iteotf ver'dict. It is true that the court is required to submit a case to the jury, or rather cannot take a case from the jury, if there be ail7 conflict in the evidence; the parties have a right to submit theii’ case to the jury upon whatever evidence they offer, be it ever so inconsiderable. But not so if a party offer no evidence, or all the proof on both sides points in the same direction.
We are well satisfied with the conclusions reached in the foregoing opinion, and adhere to the decision therein announced.