As al until the evening of October 27th. they questioned Swenson at different times Other circumstances are referred to in ar ion is already too long, and we shall not pur- It is urged by appellees that, when Cran-gument at considerable length, but the opindall had the conversation with Gillespie on the morning of October 28th, this was the first time they had any tangible proof to substantiate their suspicions of Swenson's participation in the fraudulent transaction of the notes. Swenson and Johnson both filed their affidavits on this hearing, but neither of them deny Gillespie's statement to Crandall that they acted as Gillespie described while in Spencer. The matters referred to by Gillespie have a bearing on the question as to whether Swenson was an innocent holder of the $1,200 note, and as to whether he participated in the fraud alleged to have been perpetrated upon plaintiffs by Trowbridge and Gillespie. Counsel for appellant place stress on the fact that some of the earlier letters from DEEMER, C. J., and EVANS, WEAVER, and LADD, JJ., concur. HANAN v. MESSENGER et al. (No. 29633.) ants had a right to a jury trial, and the court [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. § 14.*] Crandall to Swenson suggest that Swenson based upon misrepresentations as to the number An action to recover a money judgment, assist them in disposing of the California of acres in a tract of land purchased by plainland, but this was after Swenson and John- tiff for a specified price per acre, with no alson had assured Crandall of Swenson's en-legation of mistake or claim of right to rescind tire innocence in connection with the alleged fraud. Plaintiffs had become considerably involved by attempting to handle the California land. Swenson was, it appears, a person who was loaning money and was engaged in such transactions, and he was perfectly willing to assist them. Plaintiffs seem to have believed that if they could handle the California land and secure the title they could save the land, and their loss would be less, and they could make a profit on the land. It is contended by the appellant that plaintiffs and Heald had been scheming for some three weeks to induce him to go to Spencer, but there is nothing in the record anywhere that plaintiffs or their attorney at any time made a suggestion even that appellant go to Iowa pellee. Appeal from Superior Court, Oelwein County; E. J. O'Connor, Judge. This is a law action brought on the equity side of the calendar. Motion to transfer to the law calendar overruled, and defendants appeal. Reversed and remanded, with instructions. Cook & Cook, of Independence, for appellants. W. B. Ingersoll, of Oelwein, for ap For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes GAYNOR, J. On January 31, 1913, the calendar for trial. This motion was by the plaintiff filed the following petition: "That on the 28th day of January, 1911, the defendants were the owners in fee simple of the following described real estate situated in Buchanan county, Iowa, to wit: The northeast quarter (4) of the northeast quarter (4) of section three (3), township eighty nine (89) north, range nine (9) west of the fifth P. M. "That on or about the 28th day of January, 1911, the said defendants listed said real estate for sale with the real estate firm of Smith Bros., in the city of Oelwein, in Fayette county, Iowa, for sale. acres. "That at the time the said defendants listed said real estate for sale with the said firm of Smith Bros., as above stated, they represented to the said firm of Smith Bros. that said tract of land above described contained 4795/100 "That the said firm of Smith Bros., while acting as the agents of said defendants, priced the above-described tract of land at the sum of $115 per acre to plaintiff, and that thereafter during the said year 1911 took this plaintiff to see said land and view the same, and that at this time the said defendants represented to this plaintiff that there were 4795/100 acres of land in said tract contained. "And that thereafter during the year 1911 this plaintiff entered into a written contract with the defendants, whereby and wherein plaintiff contracted to take said above-described land of and from the defendants for the sum of $115 per acre, which contract was in writing, but plaintiff is unable to attach a copy of the same to this petition for the reason that she has lost the same. "That on or about the 11th day of December, 1911, the plaintiff, relying upon the representations made by the defendants that there was 4795/100 acres of land in the northeast quarter of the northeast quarter of section 3, township court overruled, and the defendants excepted. Thereupon the cause was tried as an equitable action in equity over the objection of defendants. At the conclusion of the testimony the court entered judgment against the defendants for $1,091.85 and $20.85 costs, with interest upon the judgment at 6 per cent. from June 4, 1913, to all of which the defendants except. This is a simple action to recover a money judgment, based upon misrepresentations as to the number of acres in a certain tract of land sold by the defendants to the plaintiff. There is no allegation of mistake; there is no claim of right to rescind the contract; in fact, no equitable issue presented. The defendants are entitled to a jury trial upon the issues presented. The court erred in overruling the defendants' motion to transfer to the law side of the calendar for trial, thereby denying to the defendants the right of trial by jury. The case must be reversed on account of this ruling. It cannot be tried de novo here. Therefore it is improper for us to enter upon a discussion of the evidence. There must be another trial before a jury if defendants demand it. This case is ruled by Watson v. Bartholomew, 106 Iowa, 576, 76 N. W. 858. The case is reversed and remanded, with instructions to sustain the motion and transfer the case to the law side of the calendar for trial. Reversed. 89 north, range west of the fifth P. M., in "That said tract of land did not contain 4795/100 acres of land, the number of acres of land which defendants represented to plaintiff that it did contain, and which number of acres defendants did sell to this plaintiff at the agreed price of $115 per acre, and for which they received payment therefor from this plaintiff, but only contained 3923/100 acres, and no more, being thereby 872/100 acres short the number of acres which the said defendants represented to plaintiff that it did contain, and for which plaintiff has paid to the defendants the sum of $1,002.80 in excess of what she would have paid had she known the true number of acres in said tract contained. "That, by reason of the misrepresentation made by said defendants to plaintiff as to the number of acres which said tract contained, the said defendants have obtained from this plaintiff the sum of $1.002.80 which they were not entitled to, and which should be repaid to this plaintiff, which sum is now due and owing this plaintiff, together with 6 per cent. interest thereon from the 11th day of December, 1911. "Wherefore plaintiff demands judgment against the defendants for the sum of $1,002.80, with interest at the rate of 6 per cent. per annum from the 11th day of December, 1911, together with costs of suit, and for such other and further relief as may be just and equitable in the premises." Thereafter the defendants appeared by their attorneys, Cook & Cook, and moved to transfer the cause to the law side of the DEEMER, C. J., and LADD and SALING IRVINE v. CITY OF OELWEIN. (No. 29575.) (Supreme Court of Iowa. Jan. 22, 1915.) 1. ACTION (§ 53*)-SPLITTING CAUSES OF ACTION-DAMS-ACTION FOR FLOODING-"PERMANENT NUISANCE." As a general rule, where a permanent dam has been constructed which results in the continuous flooding of plaintiff's land, so as to amount to a permanent nuisance (that is, one in which the damage is continuous and persistent and will certainly continue unless abated by the hand of man), the cause of action arises when the land is first flooded, and recovery must be had for the full damages, past, present, and prospective, measured by the difference in the value of the property before and after the flooding. [Ed. Note.-For other cases, see Action, Cent. Dig. 88 549-551, 553-623; Dec. Dig. § 53.* For other definitions, see Words and Phrases, First and Second Series, Permanent Nuisance.] 2. LIMITATION OF ACTIONS (§ 55*)-ACCRUAL OF RIGHT OF ACTION-DAMS-ACTION FOR FLOODING. The statute of limitations begins to run against an action for such damages on the date of the first flooding. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. 55.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 3. VENDOR AND PURCHASER (§ 218*)-DAMS-, park in the defendant city, undertook the ACTION FOR FLOODING CONVEYANCE OF erection of a reinforced concrete dam across LAND. One who acquires, by warranty deed, a tract of land after a portion thereof has been flooded as a result of the construction by a city of a permanent dan to create an artificial lake for park purposes, does not acquire the right of the former owner to recover damages for the diminished value of the land. a stream known as Otter creek, which flowed through the city, or a part thereof. This dam was built near the south line of section 33 of the township in which the city is located, and upon ground belonging to the city. No condemnation proceedings were instituted, [Ed. Note. For other cases, see Vendor and but the city obtained many voluntary conPurchaser, Cent. Dig. § 456; Dec. Dig. § 218.*] veyances from parties owning lands which 4. WATERS AND WATER COURSES (§ 179*)- would be affected by the dam, among whom DAMS ACTIONS FOR FLOODING INSTRUC- was plaintiff. Plaintiff, being the then ownIn an action by the grantee of land for dam-er of the south 30 acres of the S. E. 1⁄4 of ages resulting from the flooding thereof by a dam the N. W. 4 of section 33, made a deed to constructed before he became the owner of the the defendant which granted to the city, land, instructions on the issue of the permanent or continuing character of the injury held in- among other things: consistent and likely to mislead the jury. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. § 179.*] TIONS. 5. VENDOR AND PURCHASER (§ 218*)—DAMSRIGHT OF ACTION-GRANTOR. One whose land is damaged by the permanent flooding thereof may recover such damages, even after conveying the land to another by warranty deed. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 456; Dec. Dig. § 218.*] 6. NUISANCE (§ 50*)-REMEDIES-ELECTION. Ordinarily, where the erection of a structure is permanent, but injurious only because of its use, or if it is a mere trespass, the owner of the land may elect whether to permit it to remain and recover his damages as a whole, measured by the decreased value of his land, or to sue for the damages accrued to the time of trial and for the abatement of the nuisance. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 118-127; Dec. Dig. § 50.*] 7. NUISANCE (§ 26*)—REMEDIES-ELECTIONLoss of RIGHT. One who had requested and assisted a city to construct a dam, so as to create an artificial lake in its park, and who thereafter purchased a tract of the land thereby flooded, cannot elect to treat the dam as a nuisance and have it abated. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 64-66; Dec. Dig. § 26.*] Appeal from District Court, Fayette County; A. N. Hobson, Judge. Action at law to recover damages for an alleged nuisance, due to the construction of a dam which caused water to overflow lands belonging to plaintiff, and for an order for an abatement of the nuisance. The case was tried to a jury upon issues joined by defendant's answer, resulting in a verdict for plaintiff in the sum of $200 and an order of abatement as prayed. Defendant appeals. Re versed and remanded. W. B. Ingersoll, of Oelwein, E. H. Estey, of West Union, and Jay Cook and Rollin J. Cook, both of Oelwein, for appellant. A. E. Irvine, of Oelwein, and Ainsworth & Hughes, of West Union, for appellee. DEEMER, C. J. During the year 1907 the defendant city, at the instance or upon the request of many citizens of the town, for the purpose of creating an artificial lake in a "The right to maintain the dam, as above set forth, and overflow the lands above described, be necessary in judgment of said city of Oelbelonging to us, in such way and manner as shall wein to create and establish and maintain said lake as above set forth forever. And it is further agreed that the said city of Oelwein shall have the right to the use of all lands overflowed for the purpose of boating, fishing, etc., and for all other purposes incident to the creation and maintenance of said lake for park purposes and the establishment and maintenance of said park upon the premises hereinbefore described, purchased from the said G. A. Oelwein, the said in expressly waive any claim for damage from party above named as grantors hereby and herethe said city of Oelwein resulting from the use and occupancy of said land in the way and ly understood and agreed that the grant and It is expressright herein conveyed shall continue and endure so long as the said premises or any part thereof purchased from the said G. A. Oelwein shall be used for park purposes; and the said Isabella Irvine and Katherine Miles hereby and herein relinquish all their right of dower in and to the above described premises." manner above set forth. Contracts were made for the construction of the dam, and the city proposed to issue its warrants for $2,500 in payment thereof. The contractors were not satisfied with these warrants alone, and, to protect them against loss, 45 citizens, among whom was plaintiff, executed to said contractors a written guaranty of the payment of said warrants. The conveyance was made on July 30, 1906, and the guaranty on April 19, 1907. The dam was built by the contractors and completed on or about November 2, 1907, and water arose to the height of the dam and backed upon the lands within two or three weeks of its completion. The dam was built of concrete, steel, and iron, and in as substantial and permanent a manner as possible; but when originally constructed it was supplied with a wooden gate, which was afterward supplanted by an iron one, weighing about 1,000 pounds, and operated by cogs and a pinion wheel. This gate goes to the bottom of the dam, and is about 4x6 feet, 3 inches thick. By raising it, all the water confined by the dam may be let out. This gate is not used to relieve flood water or ice and all such flow over the top of the dam. Very little water passes through the dam itself, and it is as permanent as is possible to make such a structure; the witnesses saying that, on account of the damages caused by the floodit could only be destroyed by dynamite. At the time of the construction of the dam and down until October 27, 1908, one Alice Guthrie was the owner of the W. 1⁄2 of the S. W. 4 of section 28, in the same township as the one in which the dam was built, known in the record as the "Holroyd Eighty," which was more or less affected by the backwater of the dam, which fact was well known to plaintiff. On the last-named date, she, in consideration of the sum of $3,000, conveyed the same by warranty deed to plaintiff herein, covenanting that they were free and clear from all incumbrances and fully warranting the title. The price per acre was $37.50. The deed was delivered, and plaintiff thereunder became entitled to the possession and use of the land. Without any notice to the city to remove or abate the dam, plaintiff commenced this action to recover damages and to abate the nuisance caused by the dam, on January 6, 1911. This was followed by various other pleadings, to some of which we shall refer during the course of the opinion. Doubts having arisen regarding the legality of the proceedings of the city in the premises, the Legislature, by an act passed April 12, 1909, undertook to legalize the same as fully as if they had in all respects been in strict conformity to law. In the original petition filed in the case, plaintiff alleged that the dam of which he complains was and is a permanent concrete structure, and that it caused the water to back up and overflow, not only the 80-acre Holroyd tract, but also the N. 1⁄2 of the S. E. 4 of the S. W. 4 of the same section, which plaintiff had owned for many years. The exact allegations as to damages are as follows: "That the effect of the erection of said dam across Otter creek, at the place above mentioned, was to cause the water to raise in said creek, and flow back onto the plaintiff's land, thereby submerging a large quantity of land in ordinary stages of water, and in flood seasons, to cover a large tract on both sides of said creek of the plaintiff's land. That, previous to the erection of said dam, the plaintiff was enabled to cross said creek from one side to the other on his land, fording. That, since the erection of said dam, he at most any point along said creek, by easy is unable to cross from one side to the other except by boat. That the plaintiff has been damaged on account of the wrongful act of the defendant, in overflowing his land, in the sum of $2,500.' On September 17, 1912, plaintiff filed a supplemental petition in which he charged: "That the flooding and overflooding of plain tiff's land alleged in the original petition herein has been continued by the defendant through the years 1911 and 1912. That the water standing upon the plaintiff's land has become stag nant and has accumulated scum and filth and has destroyed the timber and grasses growing on said land. That the defendant threatens to continue the overflowing of plaintiff's land, and, unless enjoined from so doing, the damages occasioned thereby will accrue from year to year and the value of plaintiff's land will be permanently destroyed. Whereas, plaintiff asks that he have judgment for the sum of $300 in addition to the amount originally asked in the petition herein ing of the lands since the filing of the original petition, and that the defendant be enjoined and restrained from continuing or maintaining the dam and from overflowing and flooding plaintiff's land, and for interest and costs as prayed in the original petition herein." After trial, and after submission of the case to the court on various motions, plaintiff was permitted to file another pleading, called an amendment to the supplemental petition, in which he alleged: "And plaintiff has been damaged by reason of such wrongful acts of the defendant in flooding and overflowing his said land during the said years, 1911 and 1912, in the sum of $300." Among other things defendant pleaded plaintiff's guaranty of the payment of the warrants as a complete defense to the action; that plaintiff was not the owner of the land until long after the dam was constructed and the water backed up; and that he is not the assignee of any claim for damages on account thereof-the conveyance by plaintiff to defendant of his lands for the purpose of waiving damages to his lands by the overflow of the water. It admitted the construction of the dam, and that it was a permanent structure, and pleaded the legalizing act already referred to, and further pleaded that plaintiff orally requested the defendant to erect the dam before any steps in that direction had been taken. Some other matters were pleaded in defense which need not be mentioned. Plaintiff demurred to some of these defenses, and the demurrer was sustained in part and overruled in part. No attention need be paid to these rulings, as they are not now challenged, and so are not involved in what we shall say regarding the merits of the case. Just before the taking of the testimony began, the following record was made: court to require the plaintiff to elect whether he "Comes now the defendant and moves the will proceed in the trial of this case upon his claim for permanent damages for the construc tion of said dam, as set forth in his original petition, filed herein, or whether he would proceed upon his claim for injunction and damages tiff thereupon made the following election: The up to the time of this trial, as set forth in his supplemental petition herein. And the plainplaintiff elects to consider the damages as continuing damages, and to stand upon the entire pleading as a pleading of continuing damages. The defendant thereupon renewed its motion as follows: 'Comes now the defendant and moves the court to require the plaintiff to elect whether he will proceed in the trial of this case upon his claim for permanent damages for the construction of said dam, as set forth in his original petition filed herein, or whether he will proceed upon his claim for injunction and damages up to the time of this trial as set forth in his supplemental petition herein.' The court thereupon made the following statement, the attorney for the plaintiff having elected to proceed for such damages as he sustained to the present time, and having stated that he does not seek to recover all the damages he may sustain by flooding of the property which he may at any time hereafter sustain. Plaintiff excepts. Defendant excepts." Plaintiff then proceeded with the taking of his testimony and introduced evidence to show that certain gravel pits or beds on the | from above by the gas plant, railroad shops, or land were covered with water so that he by the defendant city." could not get at them; that pasture land was damaged by ice and débris lodging on the land in the spring; that the water was covered with scum that came from the city, and the water became unpalatable; that certain live springs were covered by the backwater so that they could not be used by man or beast; that the grass and pasture land was destroyed. He also claimed that certain timber was destroyed, but as a rule he confined his proof of damages to the difference in the rental value of his land during each of the seasons of 1909, 1910, 1911, and 1912. Aside from this, the case was treated as for a permanent nuisance, and injury to the land, the grass, and the trees was shown. Motions for directed verdict were filed both at the close of plaintiff's testimony and after both parties had rested, but these were overruled and exceptions taken. The verdict was for plaintiff in the sum of $200, and defendant moved in arrest of judgment for judgment notwithstanding the verdict and for a new trial. Each and all of these motions were overruled, and judgment was entered upon the verdict, and an order of abatement was also entered, restraining defendant from continuing or maintaining the dam. Appellant raises many questions in the brief filed for it, and the fundamental propositions are not easy of solution. The trial court instructed in part as follows: Whilst many questions are argued, the chief contention is over the plaintiff's right to recover any damages at all because of the permanence of the structure, and the fact that plaintiff did not become the owner of the land until after the damage was done. The trial court instructed upon the question of the permanent character of the dam, and the jury found, in answer to a special interrogatory, that the dam did not constitute a permanent injury to the plaintiff's land; yet as a matter of fact there was no real issue in the pleadings over that fact; and the testimony, aside from a little with reference to periodic overflows, and the special damage incident thereto, was directed to the damage done the land, the grass, the gravel, and the timber on the land; and plaintiff evidently proceeded upon the theory that the nuisance may have been permanent, and the damages were to the land itself and not to the crops thereon; yet he (plaintiff) had the right to elect to treat the nuisance as a continuing one and to sue for loss of the rental value instead of for damages done to the land itself. nuisance shall be permanent, the cause of action arises when the land is first flooded, and the recovery must be for the full amount of damages done the property, measured by the difference between the value of the land before and immediately after the dam was constructed and the flooding done. [1] There are some cases which indicate that this may be done where the party injured has at all times owned the land, as illustrated in Risher v. Coal Co., 147 Iowa, 459, 124 N. W. 764; Hollenbeck v. Marion, 116 Iowa, 69, 89 N. W. 210; Harvey v. Railroad Co., 129 Iowa, 465, 105 N. W. 958, 3 L. "This action was brought originally for perma- R. A. (N. S.) 973, 113 Am. St. Rep. 483. But nent damages, and, in reaching a proper conclusion in the case, it may be necessary for you the general rule is that where the nuisance to determine, from the evidence, whether is permanent, and the damages are to the the injuries complained of are permanent land itself, and all parties intend that the or continuing injuries. Whenever the acts complained of are of such a character that their continuance is necessarily an injury, and, where they are of a permanent character, that will continue without change from any cause but human labor, there the damage is an original damage; but where the injury from the alleged wrongful acts is temporary in its nature, or is of a continuing or recurring character, the damages are ordinarily regarded as continuing. If you find from the evidence that the dam in question is a permanent dam, then, under the undisputed facts in the case, plaintiff cannot recover for any damages which may have been sustained to the premises previous to the time he became the owner thereof. If you find, from a preponderance of the evidence before you, that the dam erected by the defendant city overflowed plaintiff's land, that the city maintained said dam after plaintiff became the owner of the premises, and that said city continued to overflow plaintiff's land, then your verdict should be for plaintiff, and, if you do not so find, then your verdict should be for defendant. If your verdict is for plaintiff, then you will allow him the difference between the rental value of the premises, if the said land was in the condition it was before it was overflowed by defendant, and its rental value in the condition it was immediately after such overflowing, all as shown by the evidence, and covering the years 1909, 1910, 1911, and 1912. You are instructed that you will allow no other items or amounts, except rent, in computing damages in case your verdict is for plaintiff, and you will not allow plaintiff to recover any amount what [2] In such cases the statute of limitations begins to run on the date of the first flooding, and successive actions cannot be brought. Powers v. City of Council Bluffs, 45 Iowa, 652, 658, 24 Am. Rep. 792; Peden v. Railroad Co., 73 Iowa, 328, 35 N. W. 424, 5 Am. St. Rep. 680; Stodghill v. Railroad, 53 Iowa, 341, 5 N. W. 495. [3] In such cases the damages are done to the then owner of the land, and his cause of action is not transferred to a grantee by warranty deed. Such is the express holding in Peden v. Railroad Co., supra-a case which has never been challenged or repudiated since its announcement. [4] We do not know just why the trial court submitted the question of the permanency of the dam to the jury. The issue was not tendered, and, if it were, according to the court's instruction it had no bearing |