#### Stahr v. Chicago, Memphis & Gulf Railroad Company.

(Decided March 19, 1918.)

Appeal from Fulton Circuit Court.

1. Election of Remedies — Covenant for Ditching — Breach.—For a breach of a covenant in a deed, conveying a right of way to a railroad company, to keep and maintain certain ditches, the grantor may sue for specific performance of the contract, or for injury to his lana, or for injury to his crops.

2. Judgment — Splitting Actions — Covenant to Ditch — Breach. — The rule that but one recovery may be had for an injury to land applies only in a case of permanent injury and not to a case where the injury is such as merely to deprive the owner of the temporary use of t'he land for purposes of cultivation during a brief period of time.

S, Judgment — Conelusiveness—Covenant for Ditching — Breach.'—A judgment in an action against a railroad for a breach of a covenant to keep and maintain ditches where plaintiff sought and recovered only temporary damages for the loss of the use of his land and for the destruction of his growing crops during two-years, is not a bar to another action for subsequent injuries to his growing crops.

HESTER & HESTER for appellant.

BEN DAVIS and J. E. ROBBINS for appellee.

Opinion op the Court by

William Rogers Clay, Commissioner

Reversing.

*2By a deed dated January 25, 1911, Stephen Stahr conveyed to the Chicago, Memphis & Gulf R. R. Company, a strip of ground eighty feet in width through his farm, and also a strip of land ten feet wide on the west line of the track inside the fence from the line of ^the railroad south to the lowest point of the surface for the purpose of a ditch to he opened immediately upon the construction of the railroad for the water from the ditches on either side of the railroad. The deed' also contained a covenant on the part of the railroad and its assigns to keep and maintain the ditches on either side of the railroad and the ditch on the west line, open and in good repair to the level of the lowest point of the surface of said line, and further provided that the grantor, his heirs and assigns should have the right to lead tile into the ditches at such points as they desired.

In the year 1912, Stahr brought suit against the railroad company to recover damages which he sustained during the years of 1911 and 1912 by reason of the company’s failure to comply with its covenant, the petition alleging that by reason of the company’s failure to properly construct and maintain the ditches, “his grasses and crops were destroyed by water and land injured, and he was prevented from planting and raising crops and lost the use of said land by reason thereof during said two years to his great damage.” In that action the trial court instructed the jury that if they believed from the evidence that the railroad company failed properly to construct and maintain the ditches and by reason thereof plaintiff’s land during the years 1911 and 1912’ was overflowed and he was thereby prevented from cultivating any of his land during those years, the jury should find for the plaintiff “the reasonable rental value of such lands he was so prevented from cultivating, not exceeding the sum of $10.00 per acre, and the reasonable expense he was put to, if any, in preparing said land for cultivation, not exceeding three hundred dollars for preparing said land, and if the jury further believe his crop of alfalfa was destroyed by reason of such overflow, if any, then they will find for plaintiff the reasonable value thereof, not exceeding $40.00 per acre for such as was destroyed, not exceeding in all, however, in this case, the sum of $2,000.00, the amount sued for.” The jury returned a verdict in favor of plaintiff and fixed his damages at $100.00.

*3In tie year 1916, Stair brought tiis suit against tie railroad company to recover damages to iis alfalfa and other growing crops during tie years 1913, 1914, 1915 and 1916. Tie railroad company pleaded tie former judgment in bar of iis rigit of recovery. Tiis plea was sustained and tie petition dismissed. Plaintiff appeals.

It was pointed out in the recent case of Chicago, M. & G. R. Co. v. Dodds *&*Johnson, 167 Ky. 624, 181 S. W. 666, tiat for tie breach of a- covenant such as tie one in question, tie grantor could bring an action for specific performance of tie contract, or sue for damages for injury to iis land, or to iis growing crops. It was further held tiat-where tie suit was for injury to land, but one recovery could be had, but where tie suit was for injury to crops, successive actions might be maintained. In announcing tiis rule, however, tie court meant tiat but one recovery could be had for a permanent injury to land and not for a mere temporary injury tiat simply prevented tie owner from using and cultivating tie land for a short period of time. While in tie first action plaintiff did allege tiat iis grasses and crops were destroyed bv water and iis “land injured,” this allegation is followed by more specific allegations showing tiat tie only injury to iis land of which he complained was a mere loss of its use for cropping purposes during tie years 1911 and 1912. Not only is this true, but tie trial court in its instruction on tie measure of damages limited plaintiff to tie recovery of mere temporary damages measured by tie reasonable rental value of tie lands which he was prevented from cultivating, tie reasonable expense of preparing such lands for cultivation, and tie reasonable value of tie crops destroyed. Since plaintiff did not ask, and was not adjudged, damages for permanent injury to iis land, but merely sought and recovered damages for tie loss of tie temporary use of tie land, and for the destruction of his growing crops, it follows tiat tie judgment in tiat action is not a bar to plaintiff’s rigit of recovery in tiis action for subsequent injuries to iis growing crops, and tie trial court erred in sustaining tie plea of *res judicata.*

Judgment reversed and cause remanded for proceedings consistent with tiis opinion.