Fell v. Bennett

Mr. Justice Gobdon

delivered the opinion of the court, October 5th, 1885.

This was an action on the case brought by Charles Fell and his mother, Rachel Fell, who were plaintiffs below, to recover damages by them suffered in consequence of the backing of the waters of Octoraro Creek upon their lands by a dam erected and maintained in the said creek by the defendants.

The plaintiffs held the lands thus flooded as tenants in common; the one, Charles Fell, owning three quarters thereof, and the other, one fourth. In the year 1877, the said Charles Fell, in his own right, brought a similar action for the same cause and against the same defendants, which, on the sixth of October, 1880, resulted in a verdict and judgment iii his favor in the sum of sixteen, dollars. The plaintiffs offered this record in evidence on the trial of the present action; it was received, but with an effect wholly unanticipated by those offering it.

The court in admitting it, accompaniéd the admission with the following remarks: “I see no difficulty about admitting the evidence for what it is worth, but we do not think, under the pleadings, it will help the plaintiffs any; but we will have to admit it to see whether, under the narr. we can try this case. It is only this record that permits us to know that one of the parties, one of the plaintiffs, has already recovered damages up to a certain time — up to September 3d, 1878. Now, stopping with that time, this record gives the court record information that one of the plaintiffs recovered damages before for the same grievance that they have laid in their narr, and it shows that the other plaintiff has never recovered; at least, there is an absence of proof of that kind. We cannot permit you to give any testimony as the record stands, because we would not know how to divide and assess the damages; one party going back to 1874, and the other party to 1877 or 1878 ; and without any explanation or averment on the face of the narr. as to time.” To this opinion the court adhered throughout the trial, and ruled out every offer of evidence tending to show the trespass of the defendants in flooding the lands of the plaintiffs. An effort was then made to withdraw this record, but this was refused. Finally, a proposition was made to limit the proof of damages to the period between the bringing of the first action and the commencement of the last, but to no purpose; the court holding that nothing of the kind could be done as the pleadings then stood. The result was, a peremptory direction to the jury to find for the defendants.

We cannot approve of these rulings or of this instruction. The declaration is unexceptionable so far as we can perceive. It is true that the origin of the nuisance is laid in 1874, a time prior to the bringing of the first suit, but as it is laid with a continuando, or what is now deemed equivalent to it, the allegation that the original act was repeated, from time to time, down to the commencement of the present action, we cannot see how the fact above stated could prevent a recovery for injuries resulting from a continuance of the primary erection, and which could not have been embraced in the previous suit. “Every continuation of a nuisance makes a fresh one,” (1 Chit. Plead. 66), and for this a recovery may be had. It follows, that for every day’s maintenance, by the defendants, of the obstruction which flooded the plaintiffs’ land after the first recovery, a new action might have been brought, and it would have been sufficient that the narr. covered any one, or all, of such causes of action. What was declared for beyond this amounted to nothing, since, as to it, the former recovery could be interposed as a bar.

It is thus manifest that the pleadings present no obstacle to the plaintiffs’ recovery, and as a result, we must hold that their proofs should have been admitted. It is true that, in the former action, tbe suit was in the name of but one of the tenants in common, and of this, perhaps, the defendants might have taken advantage by a plea in abatement, but having failed to take advantage of this defect at the proper time, they cannot now impeach the judgment. Chitty says, (Pleadings, 1, 65,) that tenants in common, must in general, sever in real actions, but that in personal actions, as for trespass or nuisance to their lands, they may join, because, though their estates are several, yet as the damages survive to all, it would be unreasonable when the damages are thus entire, to bring several actions for a single trespass.

We conclude, therefore, that whilst Rachel Fell should have been joined with Charles in the former action, yet as the defendants opposed no objection to this omission, the judgment must be taken as conclusive proof that the dam was, at that time, a nuisance. Of this as between Challes Fell and the defendants, there can be no doubt: Kilheffer v. Herr, 17 S. & R., 320, and as we cannot understand how a trespass against a joint possession can, under any circumstances, be treated as several, we must take it that when Charles recovered, his recovery was as well for his mother as for himself, and that it was, therefore, conclusive on all parties, and should have been so treated in the court below. It follows, that the plaintiffs’ offers of evidence, including the record of the former suit» ought to have been admitted.

The judgment of the court below is now reversed, and a .new venire ordered.