(dissenting):
I cannot concur in the conclusion reached by my associates. The decision involves a principle of vital importance to every public service corporation in the state; and, I think, misapplies it. The opinion, in effect, holds that a boom company, without negligence in the construction, maintenance or operation of its boom, is nevertheless liable to repeated actions for damage on account of an unavoidable injury to a mill owner, which is the natural result of the lawful operation of its boom, notwithstanding the injury is continuous and permanent. It affects railroads, pipe lines and all improvement companies exercising the right of eminent domain, and may rise up some day, like the ghost of Banquo, to plague us. If this decision is right, boom companies will have a precarious .and fretful existence in this state. Because if they are liable in repeated actions for unavoidable injury resulting from a continuation of the same cause, as if for maintaining a private nuisance, they are liable to be compelled by suit to abate the nuisance, which may mean a removal of their booms.
It is not shown in this case that the Boom Company was negligent in any particular, either in the construction, or operation of its boom. It, therefore, can not be held liable, on the ground of negligence. Then, if it is not negligent, how can it be said to be maintaining a private nuisance, when the injury to Pickens’ mill is unavoidable and the Boom Company is occupying the river by virtue of the right of eminent domain conferred by its charter? I confess my inability to see it in this light. It is true the books speak of a thing which causes injury to the property of another as a nuisance. But I am now discussing an abatable nuisance, one that gives the injured party a perpetual i*ight of action for a' continuation of one and the same cause.
*19The injury to Pickens* mill was not recurrenL, intermittent and traceable to distinct causes; hut was due to a gradual accumulation of sand in the river below his natural water-fall. His own testimony is as follows: “Q. When did the water commence backing on you? A. Ever since they commenced the operation of the boom.” In other parts of his testimony he says the backing of the water kept on gradually increasing. He further says that the boom was completed “along about 1890, 1891 or 1892.” This shows when he received the injury and the nature of the injury; it was increasing, continuous and permanent. His right of action accrued when he was injured. That was in 1892 at most. But he did not bring this action until December 21, 1904; and not having brought his action until more than five years after he had a right to bring it, he 'is barred by the statute of limitations,
I do not deny that Pickens at one time had a right of action for injury to his mill, or even to his natural water-fall if he had not had a mill. There is abundant authority for this. He owned the fee in the bed of • the river and was entitled to the- flow of the water as nature had provided. This was a property right guaranteed to him by the Constitution, which the legislature could, at no time, have taken from him without just compensation, and which, since the Constitution of 1872, it could not so much as injure without compensation. Still his property was liable to be taken absolutely, or to be injured by the Boom Company by its right of eminent domain conferred upon it by the law and its charter. In either event, however, Pickens was entitled to compensation; in the one case, by means of condemnation proceedings; in the other case by an action for damages. His right to sue for injury is. expressly saved to him by section 28 of the Boom Act; but he had the right under the Constitution, independent of this reservation. It has been expressly decided by this Court in cases involving injury to a land owner by the changing of the grade line of a street. In these cases there was no statute conferring, or even reserving, a right to sue for injury, and the Court held that the party injured could sue by virtue of the constitutional right. Johnson v. Parkersburg, 16 W. Va. 402; Hutchinson v. Parkersburg, 25 Id. 226; Blair v. Charleston, 43 Id. 62; Crenshaw v. The Slate River Co., 6 Rand. 245.
*20Pickens and the Boom Company have mutual rights in the river; and each is bound to respect the rights of the other. The Boom Company can not injure Pickens’ water power without responding in damages; neither should Pickens perpetually harass the Boom Company by repeated actions, as if it were maintaining an unlawful nuisance, when, the proof shows that the injury was the natural result of the lawful exercise of a lawful right. In order to avoid the effect of the statute of limitations the Boom Company must be guilty of maintaining a private, abatable nuisance; and in order to constitute the injury complained of a nuisance it must result from negligence either in the construction, or in the operation. There was no attempt in this case to prove negligence. Consequently, the principle of law governing in cases of abatable nuisances has no application to the case. I know of no decisions by this Court, except the case of Pickens v. Boom Company, twice brought to this Court upon writs of error, and reported in 51 W. Va. 445 and 58 W. Va. 11, which decide that, because injury results, an abatable nuisance is to be inferred; nor have I been able to find any other authority for such doctrine in the decisions by the courts of England, or of this country. I do not know what facts were proven in the former action by Pickens against the Boom Company, 51 W. Va., because the record of that suit is not in evidence in this. It appears, however, from a reading of the opinion that the boom was held to be a private nuisance, from the mere fact of injury to Pickens’ mill, and not on account of actual negligence in the construction, or operation of the boom. I hold this is not law. Injury often results from the doing of a lawful thing in a skillful manner; in such case liability exists, but not for repeated actions, as if the thing were an abatable nuisance. This Court, in the 9th point of the syllabus, in Hargraves v. Kimberly, 26 W. Va. 787, following Smith v. Pt. P. & O. R. R. Co., 23 W. Va. 451, states the rule of law which, I think, is applicable to this present case as follows, viz: “Where the cause of the injury is in its nature permanent, and a recovely for such injury would confer a license on tlic defendant to continue the cause, the entire damage may be. recovered in a single action; but where the cause of the injury is in the nature of a nuisance and not permanent in its character but of such a character that it may be supposed, *21that the defendant would remove it rather than suffer at once the entire damage, which it might inflict if permanent, then the entire damage cannot be recovered in a single action;- but actions may be maintained from time to time, as long as the cause of the injury continues.”
It is again stated in these eases to be law, viz: Taylor v. Railroad Co., (Point 2 of the Syllabus) 33 W. Va. 39; Watts v. Railroad Co., 39 W. Va. 197, and Henry v. Railroad Co., 40 W. Va. 234. This last was a case of injury from overflow of land resulting from- negligent construction of an embankment, (mark the word negligent), and the Court, in its opinion, prepared by BRANNON, Judge, on page 242 says: “Where the nuisance is permanent, so that it will continue unless labor be applied to change it, and it necessarily injures the plaintiff, there must be a recovery in one suit for all damage, and none other can be afterwards brought, and recovery of damages will give the defendant right to continue his nuisance without further claim from the individual; but, where it is otherwise, there can not be recovery for future damages, but only from time to time as they occur, and one recovery does not justify the perpetuation of the nuisance, but there may be recovery after recovery, as long as continued.”
No authority, other than the Pickens Case, 51 W. Va. and 58 W. Va., so far as I can find, holds that the injured party has a perpetual right of action for the same continuing cause of injury, unless the act causing it is done without lawful right, or unless the injury is the result of negligence. Negligence will make the act wrongful and constitute it a perpetual nuisance for which repeated actions will lie, as well as the right to have it abated. But if the act is lawful and the injury results from work skillfully done, the injured party has but one right of action, and he must bring his suit within five years from the time of injury, or be forever barred. If Pickens had sired within five years from the commencement of his injury, he could have recovered entire damages; but having failed to sue in time the statute cuts off his remedy, and the Boom Company is entitled to maintain the cause of injury unmolested.
A correct answer to the two following questions 'will determine whether the foregoing principle should be applied in this case, viz: (1) WThat is the cause of plaintiff’s injury? and *22(2) When did it occur? It was caused by the boom and piers checking the natural flow of the water thereby causing a deposit of sand on the bed of the river in such manner as to back the water up against Pickens’ water-fall, thus diminishing the water power. Mr. Pickens says that the sand began to deposit as soon as the boom was completed, and that it grew worse all the time. This proves that the injury was not intermittent, occasional or recurrent. It was not due to different cause’s, or to repetitions of the same cause; the injury was continuous,- unbroken and without intermission, resulting from a continuous and abiding cause which, instead of ceasing at times to exist, was all the time increasing. The first cause of injury was sand deposit; and the cause of the injury for which Pickens now sues is the sand deposited in 1892 or 1893 plus subsequent additions of more sand. It will not do to say that, because sand is of a shifting nature when acted on by running water, the injury is intermittent. When the flow of water is checked it prevents the sand from shifting, and holds it in place. Therefore, the sand deposit is as permanent and continuous as the boom that caused it; and the boom is as much a permanent structure, in contemplation of law, as a house, a paved street or a railroad; none of which are permanent in a literal sense. Roofs of houses and ties in railroads will decay and rot away, and if not replaced will render the house and railroad uninhabitable and unusable. It is a matter of common knowledge that constant use will, in a few decades, wear away brick and even granite pavements. What the law means by the word “permanent” in this connection is something continuing, not to be presently removed, or discontinued. A board'walk has been judicially hold a permanent thing; and so has an injury resulting from the erection of a dam under a twenty year- lease. City of Lowell v. French, 60 Mass. 223 (6 Cush.); Cleveland &c. Ry. Co. v. King, 23 Ind. App. 573 (55 N. E. 875); Street Ry. Co. v. Payne, 192 Ill. 239; Bassett v. Johnson, 2 N. J. L. 154.
■ The boom was “substantially” built, with piers constructed of logs forming a rectangular pen, bolted together and filled with stone to give them weight and prevent their washing away. These rested on the bottom of the river, and furnished the moorings for the boom logs. This, from- its very nature, is a *23permanent structure, within the legal meaning of the word. But if its permanency depends upon the length of time that the Boom Company may have the right to maintain it, it may be as permanent as the stream in which it is located. The' boom may be used to catch other floatable material besides logs. It is not known, and, therefore, can not be said that it may not be so used after all the timber in the basin of Coal River has been cut and marketed, even if this should ever happen; nor can. it be said that by the time all the timber now accessible to the river is floated down the stream, nature may not have reforested the land with a new growth of merchantable timber. Consequently, viewing it either from its inherent character, or from the length of time it may be used, it is a “permanent” structure.
From the uncontroverted facts in the case I deduce the following conclusions, viz: (1) that the injury is the natural and unavoidable result of the doing of a lawful thing in a slcillful manner; (2) that, from both the testimony of Mr. Pickens and from the very nature of the injury, it is coexistent with the thing that caused it; (3) that the injury is necessary to the enjoyment of the Boom Company’s franchise, and is therefore an injury lawfully inflicted and gives a right, or license, to the Boom Company to maintain the cause of injury. Now, apply the well settled law, and what is the result? It is that Pickens can sue but( once, and has a right to recover entire damages, past and prospective, but he must sue within five years from the commencement of his injury, to-wit, not later than 1898, or be barred of his right.
Whether, or not, Pickens in some former suit may have been denied a recovery for entire damages, by a mistake of the court in failing to apply the correct principle, is not a justifiable argument to support a repetition of the error. The court is not in conscience bound by its own mistakes as if its decisions were in the nature of contracts to which it is a party. The ablest jurists are not infallible, and past experience and observation teach us that all courts sometimes make mistakes. But as soon as a mistake is discovered by a court it should not hesitate to correct it upon first opportunity, and in a manner to work as little hardship as possible. A court’s decision is not law; it is only evidence of the law. And if a decision is erroneous it is *24not even good evidence of law. There is no contractual relation between Pickens and the Boom Company involved in this action, dependent upon any former decision of this Court. Therefore, there is no justification foj following any former decision, if thought to be erroneous. Falconer v. Simmons, 51 W. Va. 172; Douglas v. Pike County, 101 U. S. 677; Henry v. Bank, 5 Hill 535; Paul v. Davis, 100 Ind. 422; Lewis v. Symmes, 61 Ohio St. 471; Thompson v. Henry, 153 Ind. 56; Roy v. Gas Co., 138 Pa. St. 576; Alferitz v. Borgwardt, 126 Cal. 201; Allen v. Allen, 16 L. R. A. (Cal.) 446; Ellison v. Railroad Co., 87 Ga. 691. This rule is ably discussed by Brannon, Judge, in Falconer v. Simmons, supra, and by Poffenbarger, Judge, in Harbert v. Railroad Co., 50 W. Va. 253.
The doctrine of stare decisis should not be invoked to sustain erroneous decisions, especially where rights of’ property will not be affected by overruling them. It is not a sacred and unassailable doctrine. It is only an argument, and it is the least forceful of all arguments. It has been disregarded by this Court, as well as by all others, in numerous instances; by this Court in Town of Weston v. Ralston, 48 W. Va. 158; State v. McEldowney, 55 W. Va. 1; Pennington v. Gillaspie, 63 W. Va. 541; Catzen v. Belcher; 64 W. Va., 314 (61 S. E. 930); and in many other cases to which I need not refer.
As a question of abstract justice, which would result in the greater injury, to deny Pickens recovery in this action because he was not allowed to recover entire damages in a former suit; or to permit a recovery in this action, and thereby approve the case of Pickens v. Boom Company, 51 W. Va. 445, and confer on Pickens the right either to sue the Boom Company every month in the year for damages, or compel it to remove its boom in order to abate the so-called nuisance? The question answers itself, and serves to show the utter futility of trying to administer justice without a strict adherence to correct legal principles. The law is the embodiment of man’s accumulated wisdom during the ages, which has been preserved and transmitted to us through the centuries of the past. It is founded upon the experience of mankind throughout the historical past; yea, it is even supposed to have its beginning in a time wherein man made no record of passing events, a time whereto his memory runneth not; and the rules and principles, thus established *25as a guide to bis conduct in bis social relations and duties to bis fellow man, are safer guides than the conscience of the best and wisest judge.
I do not think the authorities cited in the majority opinion sustain the conclusion. Watts v. Railroad Co., 39 W. Va. 196, certainly does not. That was injury from negligence. Point 7 of the syllabus states in terms, better than I can employ, the very rule for which I contend. State v. Elk Island Boom Co., 41 W. Va. 796, was an indictment for obstructing the passage of fish, and the injury there complained of could have been avoided.
I think the law quoted from Wood on Nuisance is good. But it does not apply to the present case, because the legislature has authorized the act complained of to be done by the Boom Company, and, unless the act is done negligently, it can no more be a private than a public nuisance.
The New Jersey case, Trenton Water Power Co. v. Raff, 36 N. J. L. 335, on which so much reliance is placed does not decide the point for which I contend. It is true that was a second suit for the same cause of injury, the maintenance of a dam causing overflow of plaintiff’s land. But it does not appear that defendant pleaded a former recovery, o-r the statute of limitations, in bar of plaintiff’s action, and this question is not discussed in the opinion. The question there decided is, that, although an act be done under authority of legislative enactment, if injury result there is liability. This I do not deny. But, if the act be skillfully done, must the defendant be liable, as was held in Pickens v. Boom Company, 51 W. Va., perpetually, and for punitive damages, as if it were maintaining an abatable private nuisance? I cannot think so. There were only two ways in which to abate the injury, (1) remove the boom and piers, or (2) remove the sand as it accumulated, and toi require the latter would be to make the Boom Company a trespasser.
Taylor v. Railroad Co., 33 W. Va. 39, allowed a recovery for injury occasioned by the building of a bridge across a stream in such a way as to obstruct the natural flow of water in case of a freshet. That was for negligence. See point 2 of syllabus, and also opinion by Brannon, Judge, on page 47.
Eels v. Railway Co., 49 W. Va. 65, is in perfect harmony *26witli my contention. In that case the injury was occasional and intermittent; while in the present case it is continuous and permanent. I need only quote from the opinion to show its distinction: “The question is whether the injury of the plaintiff in this case, if any exists, is one known in the law as a permanent injury, requiring the action to 'be brought from the first instance of damage, within five years thereafter; or is that injury such as is known in law as recurring, intermittent and continuous? In the one case the action is barred; in the other it is not. If the injury is, in legal aspect, of the latter character, though 4he bridge was erected in 1870' and remained unchanged, and though the first distinguishable item of damage from it was shortly thereafter, yet the plaintiff could disregard it, and wait silent until the occurrence of another item of damage from freshet happening afterwards, and sue for damage to her lot from that occurrence, and other items of damage, within five .years from their happening. We are of the opinion that the injury, if any, is to be classified as intermittent, not permanent. The mere building of the bridge did not cause any injury to the plaintiff. She could not sue for that alone. She could not sue until high water came and its force was, by reason of that bridge, thrown against her lot, and she received damage therefrom. That damage would be occasional as freshets might come, recurring, intermittent, one freshet doing some damage, another doing additional or greater damage.”
Of course, no action will lié in any case until injury happens. But in the present case the sand in Coal Biver never ceased to interfere with Pickens’ water power. The sand, first deposited, remained, and more sand accumulated. There was not a moment of time after the injury first began when it could be said that Pickens was not sustaining injury from the same continuing cause.
Prentiss v. Wood, 132 Mass. 486, was a case between private persons. In this case B’s dam injured A’s mill. The court held it was done “without right” and that it was a private nuisance. But the defendant’s boom is in Coal Biver by right. It had a right to injure, but was liable to malee compensation. This takes from it the character of a nuisance, and it is liable to respond only once, and within five years from the beginning of the. injury.
*27Baldwin v. Calkins, 10 Wend. 167, was a ease also between private individuals. Baldwin bad erected a dam across Seneca river for his own .benefit, under authority of an act of the leg-islaturej and had overflowed the land of another. The court held that damages could not be recovered for more than six years prior to the action, although the injury had continued for a much longer time. The court further held that the plaintiff was not entitled to recover entire damages and that the measure of the damage was the value of the use of the land for six years prior to the bringing of the suit. - The court refusing entire damages on the ground that the defendant had a right to elect to reduce the height of his dani rather than "pay entire damages. The distinction between the rights of a private individual "and the rights of a boom company invested with the power of eminent domain, must be kept in view.
Chicago &c. R. R. Co. Andreesen, 63 Neb. 456, was a case of injury on account of an “insufficient culvert,” which of course involved negligence.
Omaha &c. R. R. Co. v. Standers, 33 Neb., was a case of negligent construction of a bridge causing injury to land by overflow. The court held, that damages were recoverable only for past injxiry, and that one recovery did not bar another. But the opinion is based expressly on the ground of negligent construction, thereby constituting a perpetual nuisance.
Miller v. R. R. Co., 63 Iowa 680, was also a case of negligence. The ditch causing the injury was “wrongfully dug,” says the court. This, of course, constituted it an abatable nuisance.
St. L. &c. R. R. Co. v. Biggs (Ark.), 30 Am. St. Rep. 174, is directly in favor of my contention. Point 1 of syllabus reads as follows: “When a nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original, and may be at once-compensated. In such case, the statute of limitations begins to run upon the construction of the nuisance.”
This is the principle which should be applied in the present case. Pickens knew that as long as the water continued to flow in Coal river, and as long as defendant’s boom remained in the stream, his injury would “necessarily continue.” He could not help knowing this from the beginning. He also knew *28that defendant could not abate the injury without either removing its boom or entering upon his land and removing the sand. The latter method of abatement, if not impossible of performance, would at least malee the Boom Company a trespasser.
I have examined the other cases cited in the majority opinion, and, in my view, they do not sustain the conclusion. Where they hold that the statute of limitations does not apply, it is so held either on the ground of negligent construction, or on the ground that the injury did not occur at the time the act complained of was done; some of them so hold on both grounds combined.
The case of Virginia Hot Springs Co. v. McCray, 56 S. E. 216, I think is direct authority in support of my view. The first point of the syllabus reads: “An injury resulting from a permanent nuisance must be sued for in one action, and limitations begin to run from the time of the erection o’f the nuisance.” This is what I insist on as the law applicable to the present case. So also does the second point of syllabus in case of Guinn v. R. R. Co., 46 W. Va. 151, state the principle of law, giving the proper test in determining whether, or not, the statute of limitations has application in the present case.
The rule by which it must be determined whether, or not, permanent damages should be recovered in a given case is again stated in the opinion of the Court in Battrell v. Railroad Co., 34 W. Va. 237.
In Street Ry. Co. v. Payne, 192 Ill. 239 (Syl. pt. 4) it is held: “The construction and operation of a power house by a street railway company upon its own property, if done in a reasonably skillful manner, do not constitute a nuisance which maj'' be abated; but the company is liable to the owner of adjoining property in an action on the case for damages resulting from the establishment and operation of the power house, without any charge of negligence.”
In the case of Call v. Middlesex Co., 68 Mass. 232, which was a case very similar to the case under review, the court held that the statute of limitations applied, “even though such damages did not occur, and could not be foreseen, before the expiration of said three years;” three years being the statutory period allowed for the bringing of the action.
“In an action for injury to real estate by erecting and main-*29taming a clam and flowing the water over the plaintiff’s land so as to create a nuisance., an answer which alleges that the cause of action did not accrue within six years is good.” Lucas v. Marine, 40 Ind. 289.
“Whenever a 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, then the damage is an original damage and may be at once duly compensated. Successive actions are not allowed for damages resulting from negligence combining with a natural cause, however gradual the operation of the cause, and they will only lie where the defendant is continually in fault.” Powers v. The City of Council Bluffs, 45 Iowa 652. See also Eastman v. St. Anthony’s Falls Water Power Co., 12 Minn. 137; Baldwin v. Calkins, 10 Wend. (N Y.) 167; Guinn v. R. R. Co., 46 W. Va. 151; Henry v. R. R. Co., 40 W. Va. 242.
Farnham in his work on Waters and Water Eights, Vol. 2, sec. 586, in discussing the application of the statute of limitations to actions for various kinds of nuisances, says: “The rule that- every continuance of a nuisance is a fresh nuisance should have no application in case of permanent nuisances of this class any more than it should be contended that a trespass upon the land and erection of the structure there should constitute a fresh trespass every moment it was continued for the purpose of extending the time within which the action could be brought. And there are cases which have applied the true rule that, in case the dam is a permanent one, the limitation period will begin to run against the right of action to recover damages for the injury, from the time the dam is built.” And he cites the case of Missouri &c R. R. Co. v. Graham, 12 Tex. Civ. App. 54 (33 S. W. 576).
The theory of the plaintiff, however, is that the injury is intermittent and recurring, and that every injury resulting from natural causes, coupled with the existence of the boom, even though the boom remains unchanged, constitutes a fresh nuisance, and entitles him to a new action. This theory is wholly untenable, and is in conflict with all the authorities. There seems, however, to be much confusion in the decisions, growing out of a failure by some of the courts of the states to distinguish between those cases arising out of the conflicting rights of pri*30vate riparian owners, and those cases dealing with the rights of private owners as affected by public service corporations, such as railroad companies, canal and boom companies; and also, in the latter class of cases, in failing to distinguish between those cases in which the injury results from negligence, and those cases where the injury results from the right performance of a lawful act. But I find no authority which holds that a public service corporation is liable to a property owner in repeated actions for damages on account of an injury 'done to his property resulting from the proper exercise of its lawful rights. In such case its liability depends solely on the injury sustained by the private owner, and not upon its negligence, or wrongful invasion of another’s rights, and, in such case, the right of the injured party to recover damages rests altogether upon the constitutional guaranty that his property shall not be -taken, or damaged, without just compensation. And if the defendant once responds in damages for the injury caused by its lawful act, this should be accepted in lieu of the sum to which plaintiff could have shown himself entitled, if the defendant had procured the condemnation of plaintiff’s property in the manner provided by law; and entitles the defendant to maintain the thing that caused the injury. This answers fully the demands of justice, for the plaintiff gets, in the form of damages, what he otherwise would have gotten as the assessed value of his land, and the defendant must thereafter be regarded as if it had taken the property under the exercise of its right of eminent domain; and the recovery operates to confer a license to continue the nuisance. •
It would certainly entail a very great hardship on the Boom Company to hold it liable to respond in damages, in successive, and unlimited number of, actions. If such were the law it would have tire effect to deprive it entirely of the enjoyment of its franchise; because, if plaintiff has a right to' sue it more than once, he has a right to sue it as often as he pleases. If he chose to do so, he could bring an action every month and thus bankrupt the defendant in paying costs. This appears to me to be not only unreasonable and unjust,^but a very cruel doctrine;.because, from the very nature of the injury, it is seen that the defendant is unable to abate the injury without pulling up its boom and piers from the river, or trespassing on .'plaintiff’s *31land. The following authorities show that the injury to plaintiff is a permanent one, and not an abatable .nuisance: “A railroad track laid upon a street of a city by authority of law, properly constructed, and operated in a skillful and careful manner, is not, in law, a nuisance. ” The Chicago &c. R. R. Co. v. Loeb, 118 Ill. 203.
This was an action against the railroad company for injury done to plaintiff's property by the running of its engines and cars. The defendant pleaded the general issue and the statute of limitations. The railroad had been built and operated for a longer time than the statutory period within which an action for trespass to real estate could be brought, and the plaintiff was held tó be barred. The court in its opinion says, page 215: “The allowance of successive actions for damage, as it should occur from day to day, as new-damage, would seem to serve but the purpose of harassing, and the wasting of means in expenses of litigation. The law does not favor the multiplying of actions.” Citing in support of this principle, a number of its own decisions, and Kutz v. McCune, 22 Wis. 628; Mills on Em. Dom., sec. 66; Memmert v. McKeen, 112 Pa. St. 315.
The principle was again announced in the later case of The Hyde Park &c. Light Co. v. Porter, 167 Ill. 276, which was an action by a property owner against an electric light company. One point of the syllabus reads: “A property owner has but one action for damages for permanent injury to his property from the operation of an electric light plant near to it, but in such action all damages, present and future, are recoverable.” The court in its opinion cited the case of Chicago &c. R. R. Co. v. McAuley, 121 Ill. 160, wherein it was held that when the injury is “of a permanent character, so that the damages inflicted are permanent, a recovery not only may, but must, be had for entire damages in one action; and such damages accrue from the time the nuisance is created, and from that time the statute of limitations begins to run.” See also, The Chicago &c. R. R. Co. v. Maher, 91 Ill. 312. The City of Centralia v. Wright, 156 Ill. 651, contains the following point in the syllabus, viz: “The erection of a dam by a city for water-works, whereby a riparian owner suffered damage through overflow and the de-stuetion of a private ford, is a permanent injury, for which all damages, past, present and prospective, are recoverable in one *32action, even though the city bad only leased the site of the water works for twenty years."
“All special damages, present and prospective to the owner of lands resulting or to result from the proper construction, maintenance and operating of a railroad, under the laws of this State, constitute, as to such land owner, one single, common, indivisible cause of action, which may be enforced under the Eminent Domain act, or any other appropriate form of action.” Ohio &c. R. R. Co. v. Watcher, 123 Ill. 440.
The case of Bizer v. The Ottumwa Hydraulic Power Co., 70 Iowa 145, was an action brought by a land owner for damages for the overflowing of his land by the damming of the Des Moines river. The defendant was the grantee and' successor of the company that had originally built the dam, and was simply maintaining it in its original condition. The court held that the injury was permanent and original; that it was not a nuisance which could or should be abated; that the plaintiff was entitled to but one action for past and future damages, which action accrued to him at the beginning of the injury, and held that the defendant was not liable. On page 147, the court says: “Where the injury is permanent, but one action can be maintained, and the recovery allowed is for all damages, past and prospective. The right of action in such case accrues wholly against the party doing the injury.” See, also, Powers v. The City of Council Bluffs, 45 Iowa 652; Finley v. Hershey, 41 Iowa 389; The Town of Troy v. The Cheshire R. R. Co., 23 N. H. 83; E. L. & B. S. R. R. Co. v. Combs, 10 Bush. (Ky.) 382; Ridley v. Seaboard &c. R. R. Co., 118 N. C. 996; Aldworth v. City of Lynn, 153 Mass. 53; Fowle v. New Haven & Northampton Co., 112 Mass. 334.
The City of North Vernon v. Voegler, 103 Ind. 314, was a suit for injury to property resulting from negligently grading a street, and the court thus states the law: “In an action for injury to real estate caused by the negligence of corporate officers in constructing a public work of a permanent character, as the grading of a street, all damages, past and prospective, can be recovered in one action.” “In such a case, all the damages must be recovered in one suit, and for, fresh damages resulting from the original wrong, a second action can not be maintained.”
*33In the case of Powers v. The St. L. &c. Ry. Co., 158 Mo. 87, we find the law thus stated in the syllabus: “Where actual damages done to plaintiff’s land by overflow waters due to the negligent and defective construction of an embankment and canal, and the consequent change in the bed of a river or creek, were actual and apparent at the time such obstructions were finished, and were discoverable then to be inevitably continuous, the statute of limitations began to run at the time the obstruction was finished, although' such injury gradually increased and did not become complete for sometime afterwards. The quantum.of damages in such case, the injury being gradual and not due to any unusual flood, can be ascertained and measured just as well before as after the injury occurred, and all the damages, present and prospective, can be recovered in one action.”
Mr. Sutherland in his work on Damages, Yol. IY, sec. 10-1-5, referring to the decision by one of the appellate courts of Illinois gives the following as the proper test in determining whether or not an injury amounts to a permanent one and therefore giving but one right of action, or whether it is a continuing nuisance for which the wrongdoer may be subjected to repeated actions, viz: “Where a permanent structure is lawfully erected and thereby an injury is occasioned to adjoining property, if the structure is properly built with reference to its use and so as to produce no unnecessary damage, the cause of action arising from an injury caused by it is an entirety; but if the injury complained of results from an improper construction it is otherwise.”
Applying the foregoing principles to the present case there is no doubt in my mind that the injury, in a legal sense, is a permanent one, and is not a continuing and, therefore, abatable nuisance. If this is so, it then necessarily follows that the cause of action accrued to plaintiff at the time the injury began, and that the statute of limitations would begin to run from that time. To my mind this conclusion is irresistible.
If it is to become the law of this State, that a boom skill fully constructed in a permanent manner, and lawfully operated, is a continuing nuisance, because the property of a riparian owner is injured by it; and boom companies are to be subjected to repeated actions, unlimited in number, involving penal dam*34ages, what will be the effect upon the large number of such industries in this State? Will it not retard the development of our streams, and seriously injure the lumber industry which is at present one of our great sources of wealth? Is not the principle fraught with very great danger, and will it not work a great injustice and hardship if perpetuated?
I think the statute of limitations bars plaintiff’s action, and am in favor of reversing the judgment and dismissing the ae-. tion.