The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-12-12

street on which the plaintiffs residence -
situated telephone line.
Upon the trial OF the case in the court
below Judgment was rendered for the
plaintiff in the sum OF 81 aud costs oi suit.
The judgment was satisfied by the de-
fendant paying the sum adjudged against
it, and the receipt of the same by the
plaintiff was entered on the record, On
November last the plaintiff Instituted an
other suit against the defendant In the
district court, setting up the same state
ment of facts, recting the fact OF the
judgment recovered in the former suit. but
complaining that defendant had failed and
refused to remove the obnoxious poles and
wires from In front OF plaintiffs residence
and that by reason thereof plaintiff had
been damaged in the sum OF SIS actual
and $4,000 exemplary damages, To this tho
| defendant pleaded res addudicata the
plaintiff excepted to the plea and the ex.
ception was overruled. The matters set up
In the plea Of res adjudicata were admitted
TO be true and judgment was rendered that
plaintiff take nothing by his suit, and that
defendant recover his costs. From this the
| plaintiff appealed.
| In rendering It's decision the court says
The appellant has made but one assign
ment of error and that Is that the court
erred In overruling plaintiffs &c neral de-
murrer to defendants plea OF the judgment
| in the former suit between appellant and
appellee in bar OF this suit. and under this
assignment several propositions are sub
/ mitted, But we think il not necessary 10
! discuss them seriatim. The first PROPOSE
ton is that In an action for a nuisance
former judgment against the defendant
/ for the same nuisance is conclusive as TO
| the existence OF the nuisance. aud that II
was caused by the defendant. and wherc
the defendant has continued the nuisance
since the former action, the only question
for the jury to determine Is the amount or
damages 10 be awarded. This proposition
may be conceded TO be in the abstract cor
rect. but. with due Difference To counsel.
we fail to see its pertinence 10 the question
under consideration. The record in the
former suit between the appellant and
the appellee does net show that appellee
was adjudgod guilty OF having created a
nuisance by doing the acts complained 81
by plaintiff That record. with the ad-
mission in this suit that the matters plead
| cd in res adiudicata We're true, discloses
that the erection OF the telephone by the
defendant in the street, ia which plaintin a
residence fronts, was by authority OF the
law OF the land: and the suit can not. In
our judgment be properly regarded as n
suit TO recover damages resulting from a
nuisance, but rather one to recover Tor an
Injury sustained by the plaintiff. from acts
done by the defendant, In the exercise oil
rights secured TO 1t, by us charter, au-
thorizug the construction OF telephone.
THE defendant had. by virtue of tts
charter from the State and by license
granted 1t by the city Of Galveston. the
right TO construct Its telephone in the
street, subject. however, to the provision
of the constitution which secures indemnity
TO those whose property is either taken OF
damaged for public use. wide Raj way
VS. Hall. rs Texas. 1867 The plaintiffs
cause of action then, VIC think. was moi
for a nuisance, but for an injury resulting
TO plaintiff from the construction by de-
PENDANT OF It's telephone. In 'front.' OF plain
tins residence The telephone was not
abatabla. as nuisa noes generally are, and
fnr which reason, as shown b. the authori-
-. tics referred to in the learned briff OF up
pcllants counsel, one who is injured by a
nuisance may nave several causes OF ac-
ton against he wrong DOR And the first
suit being for damages resulting from the
nuisance itself. the Judgment in that suit
is not e bar 10 any subsequent suit The
subsequent suits being for the continuance
OF the nuisance. the suits are upon 5 par
ats causes OF action. III the first OF such
suits. the general rule as 10 the measure
OF damages seems TO b. that stated by
counsel. that such damages only as have
occurred up to the time Ct the Institution
o; the suit can bs recovered. and danag =
sccruiag from the continuance OF tie null
snnce must be recovered in subEequent
the converse OF II sefms 10 IA
adopted in this State and cthels,
,hal vs.. Taylor. Bastrop ard Hous
way 10 Texas. 1928. and au;hof1t
cited.)
Prem these authorities We cor
where the grievance coDplaIne2
manent in It's character, OF is
the parties the entire dam
ASSESSED with reference
probable future injury.
POLES and thu electric
planned OF as causing
are permanent and con
ant cen mot be ccmJ
from their present pc
State or the city az
authority they are n
pla ntih. and his fam
home was oustrucfe
wires comnlainfd o.
privsi Of he comfort
joyment Of their horo