Blaisdell v. Stephens , 14 Nev. 17 ( 1879 )

By the Court,

Hawley, J.:

The plaintiffs, as owners of a drain ditch constructed in 1876, brought this action to recover damages against defendants for wrongfully flowing waste water from their lands to the injury of plaintiffs’ditch, and for an injunction to restrain such wrongful flowing of waste water. At the close of plaintiffs’ testimony the defendants moved for a nonsuit upon the ground, among others, that it did not appear that the injury complained of ‘ ‘ was the result of the joint or concurrent act of the defendants.” This motion was overruled. The cause was tried before a jury to whom special issues were submitted. The jury answered the special issues, and also found a general verdict in favor of the plaintiffs, assessing the damages at fifty dollars. Both parties moved for judgment upon the special issues found by the jury. The court gave judgment in favor of the plaintiffs, and the defendants appeal.

From the issues found by the jury it appears that the “waste water from the defendants’lands and irrigating ditches ” did flow into plaintiffs’ drain ditch and that the waste water from the lands and irrigating ditches of Henry Weston and Mary Wall also flowed into plaintiffs’ drain ditch. The waste water from the lands and ditches of the defendants has flowed upon the land drained and intersected by the drain ditch of plaintiffs ever since 1864. "With, the exception of the eighth day of May, 1877, no more waste or drainage water flowed from the lands and ditches of the defendants than in previous years. The defendants “ own, occupy and irrigate separate and distinct tracts or parcels of land each in his own right.” They have no drain ditch which they use together in common. The defendant Sessions in 1876 constructed a drain ditch leading from his land to the Truckee river of sufficient capacity to carry, and it did carry, all the waste water brought or used by him on his land with the exception of the eighth day of May, 1877.

The jury failed to find whether the defendants, or either of them, used any more water upon their land than was proper and necessary to irrigate the same, but did find that each defendant used proper and reasonable methods of irrigation. The plaintiff, Henry Stephens, had dams across the slough or channel, in which waste or surplus water from the lands of defendants’ flowed, and turned the -water but upon his lands to irrigate the same. The grantors of the plaintiff, Henry Stephens, appropriated, claimed and used the waste water flowing from the lands of defendants for irrigating purposes. The plaintiff, Bine, upon the land of the plaintiff, Blaisdell, used the waste or surplus water flowing from the lands of Henry Stephens, for irrigating purposes. The waste water flowing from the lands of defendants flowed upon the lands of the plaintiff, Henry Stephens, in a natural channel or slough, and he turned the water out of said channel upon his land. The waste water flowing from the lands of defendants, after passing over the lands of the plaintiff, Henry Stephens, flowed into an artificial ditch constructed upon the lands of the plaintiff, Blaisdell, and thence into the drain ditch of the plaintiffs. The plaintiffs’ ditch was damaged to the extent of seven ty-five dollars.

The jury did not know how much it was damaged by the water flowing from the lands of Mary Wall and Henry Weston, but found that it was damaged fifty dollars by the water flowing from the lands of defendants and twenty-five dollars by the “waste water flowing from plaintiffs’ lands.”

It does not appear from tbe evidence that the defendants acted in concert, or that the act of either in any manner produced the act of the other.

We are of opinion that the motion for a nonsuit ought to have been sustained.

The general principle is well settled that where two or more parties act, each for himself, in producing a result injurious to plaintiff, they can not be held jointly liable for the acts of each other. (Ferguson v. Terry, 1 B. Mon. 96; Partenheimer v. Van Order, 20 Barb. 479; Guille v. Swan, 19 Johns. 381; Bard & Wenrich v. Yohn, 26 Pa. St. 482; Little Schuylkill Navigation Railroad and Coal Company v. Richards, 57 Id. 142.)

The case last cited is certainly analogous to the case at bar. There the suit was brought for damages to a dam filled by deposits of coal dirt from different mines on the stream above the dam, and the plaintiffs5ought to hold the defendant liable for the whole damages caused by the deposits. Speaking of the results that -would follow if the defendant was held liable for the acts of others, the supreme court say: “It is immaterial what may be the nature of their several acts, or how small their share in the ultimate injury. If, instead of coal dirt, others were felling trees and suffering their tops and branches to float down the stream, finally finding a lodgment in the dam with the coal dirt, he who threw in the coal dirt and he who felled the trees would each be responsible for the acts of the other. In the same manner separate trespassers who should haul their rubbish upon a city lot, and throw it upon the same pile, would each be liable for the whole, if the final result be the only criterion of liability. But the fallacy lies in the assumption that the deposit of dirt by the stream in the basin is the foundation of liability. It is the immediate cause of the injury, but the ground of action is the negligent act above. The right of action arises upon the act of throwing the dirt into the stream — this is the tort, while the deposit below is onty a consequence. The liability, therefore, began above with the defendant’s act upon his own land, and this act was wholly separate and independent of all concert with others-. His tort was several when it was committed, and it is difficult to see how it afterwards became joint, because its consequences united with other consequences. The union of consequences did not increase his injury. If the dirt were deposited mountain high by the stream, his dirt filled only its own space, and it was- made neither more nor less by the accretions.” In this case, the right of action arises, if at all, upon the act of allowing the waste water to run into the slough from the land of the defendants. This is the tort. The damage to the drain ditch below is only a consequence. The act of defendant, Sessions, in allowing the waste water to run from his land was separate and independent from the act of defendant, Stephens, in allowing the waste water to run fronrhis land, and neither of them could be held liable in damages for the wrongful acts of the other.

The judgment of the district court is reversed and the cause remanded for a new trial.