Pleading—Effect of Suit for Injunction on Subsequent Suit for Damages

On May 7, 1952, Ernest and Mabel Bahm, Theodore Sohl, and Willy and Alvina Wischmann obtained a decree enjoining Ralph Raikes from diverting the flow of certain creeks onto plaintiffs’ lands. This judgment was affirmed by the Nebraska Supreme Court. On June 10, 1954, the Wischmanns brought an action against Raikes to recover monetary relief for damages done to their property by defendant’s diversion of water. The case was tried before a jury and a verdict was returned in favor of plaintiffs for $10,000. This verdict was reversed and remanded on the ground that the evidence did not sustain plaintiffs’ pleaded cause of action. Upon rehearing, the court concluded that they were in error in the original opinion, and substituted another in its place. Held: Where multiple party plaintiffs bring a suit for an injunction and such an injunction is issued, one of the original plaintiffs may not bring a subsequent suit for damages sustained prior to the issuance of the injunction by the thing enjoined. The court’s holding stems from the rule that a plaintiff may not split his cause of action. This rule has been exhaustively discussed, and the reasons for it have been summarized by one authority as being to prevent harassment of defendants, wasting the court’s time, and multiplicity of suits. However, where this “splitting” involves an action in equity and a subsequent action at law, as in the subject case, the authorities have been far from unanimous. In determining whether one or two causes of action exist in this situation, the determining factor frequently is the extent to which law and equity have merged under the code provisions in a particular jurisdiction