Graham v. Dahlonega Gold Mining Co. , 71 Ga. 296 ( 1883 )

Hail, Justice.

This was a bill to restrain a trespass, which consisted in the continued and permanent diversion of a stream running through complainant’s land through a ditch opened by the defendants. The bill set forth that the damage occasioned by this diversion of the water was irreparable, in that it deprived him of its use for agricultural, domestic and mining purposes, there being valuable gold mines on the premises which he was unable to work or otherwise utilize for the want of this water thus diverted, used, and appropriated by the defendants. The insolvency of defendants was substantially, though not very distinctly charged. There was a prayer for the restoration of the water to its natural channel, and -for a perpetual injunction, as also for the usual and necessary relief.

A demurrer was filed to this bill in the lower court, and sustained upon the grounds following :

(1.) Because it did not show any cause of action against defendants, or any title to relief.

(2.) For want of equity.

(3.) Because complainant had an adequate remedy at ■ law.

(4.) Because the bill was multifarious in joining the defendants, between whom no combination or concert of ' action was charged.

(5.) Because complainant has referred in the bill to various suits in equity and decrees, and has failed to attach exhibits of the same to his bill. Error is assigned to the decree dismissing this bill.

1. There is nothing in the last ground of the demurrer. The litigation between the defendants about the ditch conveying the water of this and other streams is only incidentally referred to in the stating part of the complainant’s bills, and is not at all material to any question raised by the pleadings ; ‘indeed it strikes us as impertinent to the issues sought to be made thereby. Besides these pleadings are shown to be voluminous, and the right to refer them is asked, as they are in the court where this bill is pending, if it should be deemed necessary.

2. There is manifest equity .in this bill, and while there is a remedy at common law, the remedy is not adequate to meet the exigencies of the case made here. The complaint is not against a mere fugitive or temporary trespass. The damages would seem to be irreparable, in that the complainant is deprived of the full use and enjoyment of his premises for want of the water diverted; he requires it for domestic use, and agricultural purposes, and without it is unable to ascertain and develop the mineral resources of his land; besides, it sufficiently appears from the statements in the bill, that if the defendants are not already insolvent, they are rapidly approaching it by being engaged In exhausting and expensive litigation. Each day that this diversion continues is a fresh trespass, and gives an action for nominal damages, if not something more, and the court may well interpose for the avoidance of circuity .-•and multiplicity of suits. Code, §3219, and cases cited under this section. If the trespass be destructive of the very nature and substance of the estate, equity will grant relief. 12 Ga., 464 ; 30 Ib., 47 ; Ib., 300. As to the interposition of equity to quiet litigation and prevent multiplicity of suits, see Code, §3233.

3. The bill is certainly not multifarious; distinct and 'independent matters are not joined in the same suit. Sev•eral matters of a distinct and independent nature are not therein joined against the several defendants to the bill. 'The complainant here claims one general right against both these respondents. This objection is not favored by courts of equity, for the sufficient reason that “ it is the interest of the parties as well as the interest of the public, that all matters in controversy between them should be settled by one suit, when it can be done with safety and without great practical inconvenience.” 9 Ga., 278, and authorities there cited. To this case may be added many subsequent ones determined by this court on the same line of policy. There is not even a misjoinder of parties defendant in this bill. As we have before stated, it is brought to enjoin trespassers and to establish and quiet complainant's right to the use of this stream, which has been appropriated by these defendants. Any participation m this wrong by any party renders him liable; it extends to one who procures it to be done, whether he subsequently aids further in its actual perpetration or not, and whether it be an actionable wrong per se, or grows out of a breach of contract, and such a person is made liable to a suit either alone or jointly with the actor. Code, §3012. In suits at law, where several trespassers are sued jointly, the plaintiff may recover against all of them damages for the greatest injury done by either; and for the settlement of the portions of the finding, as between themselves, to which each is liable, the jury may specify in their verdict the particular amount to be recovered of each, and in such cases the judgment might be entered severally. Code, §3075. But where the finding is against all, and the judgment, in accordance therewith, is entered jointly against them, and is paid off by one, the others are liable to him for contribution. Ib., §3076. Nothing could evince more strongly than this the purpose of the legislature to end by a single suit the controversy growing out of the commission of such wrong between all the parties participating in its commission. In reason and justice, and according to the very spirit of these provisions of the law, this purpose is to be kept in view, whether the proceeding is at law or in equity.

Judgment reversed.