American Plate Glass Co. v. Nicoson

• Decision Date: 24 February 1905
• Docket Number: No. 4,530.,4,530.
• Citation: 73 N.E. 625,34 Ind.App. 643
• Parties: AMERICAN PLATE GLASS CO. v. NICOSON et al.
• Court: Indiana Appellate Court

34 Ind.App. 643

73 N.E. 625

AMERICAN PLATE GLASS CO.

v.NICOSON et al.

No. 4,530.

Appellate Court of Indiana, Division No. 1.

Feb. 24, 1905.

Appeal from Superior Court, Madison County; Henry C. Ryan, Judge.

Suit by Lemuel C. Nicoson and another against the American Plate Glass Company. From a decree in favor of complainants, defendant appeals. Reversed.Chambers, Pickens & Moores and John W. Lovett, for appellant. Francis A. Walker, Frank P. Foster, and James A. May, for appellees.

MYERS, J.

This action was brought by appellees against the appellant in the court below to recover damages, and to have certain dams maintained by appellant across a certain water course known as “Pipe Creek” declared a nuisance, and for their removal, and for injunctive relief against appellant to prevent it from depositing sand in said stream or obstructing the natural flow of water therein.

The complaint is in one paragraph. In substance it is averred: That Nancy J. Nicoson is the owner of 50 acres of real estate in Madison county, Ind., through which flows a water course known as “Pipe Creek,” with a definite channel, bed, sides, or banks, with flowing water therein throughout the entire year. That on the south side of said water course, and adjoining same, there is a large amount of valuable building stone, and for the past 10 years a quarry has been operated thereon. That said quarry is situated but a few feet above the bed of said water course, and can be operated without any inconvenience or expense on account of water when said creek flows at its original and natural level. That, to prevent the overflow of said quarry in times of high water, plaintiffs constructed a levee or embankment ten feet high, which levee was constructed more than five years ago, and has ever since been maintained by plaintiffs. That for the past 10 years the appellee Lemuel C. Nicoson has conducted and operated said quarry. That a short distance north of said creek, and to the north and west of said quarry, is located a large manufacturing plant for the manufacture of plate glass, which plant is now, and has been for more than three years last past, operated by appellant. That said stream flows from the northeast to the southwest, and between said quarry and said plant. That the defendant in the manufacture of plate glass uses a large amount of sand, and in the conducting of its business it suffers and permits the refuse sand to be deposited in the channel of said creek, whereby the same has been filled up to a depth of several feet, and the creek greatly narrowed, thereby raising the water above its natural bed. That west of said stone quarry appellant maintains three dams, six feet high, composed of stone, timber, sand, and other material, and practically water-tight, and of sufficient strength to hold the water in said creek to the full height of said dam, and by reason thereof the water in said stream is backed up for a distance of one mile above said dam, and over and upon the lands of appellee Nancy J. Nicoson, and around and against the levee and embankments around said quarry. That appellees, at the time of building each of said dams, warned defendant not to build the same, in that it would raise the water in said creek and greatly damage plaintiffs in the use of said quarry, and would be of great and irreparable injury to plaintiffs in the use of the quarry and said lands. It is also averred that the defendant is constructing two levees or embankments on its side of said creek to prevent the water from said creek overflowing its land, thereby confining the water in the channel of said creek and raising the water therein, endangering appellees' levees and embankments around said quarry. That, by reason of the deposit of sand in and the dam across said creek, the water has been raised above its natural level six feet, and by reason thereof the lands of these appellants have been and are flooded and overflowed with water from said creek, as well as raising the water above the surface of the land of said quarry, and on and around said levees to the height of - feet, and only by said levees is the water from said creek prevented from flowing into the said quarry. That at the ordinary stage of the water in said creek, when unobstructed by sand and dams as aforesaid, said quarry was protected from overflow by its natural banks. That said dams were constructed more than 18 months ago, and are maintained by appellant, and that appellant is still depositing sand in said creek. That by reason of the obstruction aforesaid the water is maintained by appellant around and against the embankment of appellees, a large amount of which percolates through and under said levee into said quarry, and to operate said quarry appellees are compelled at a great expense and damage to remove the same by pumps, causing great difficulty and delay in removing the stone, and requiring an additional amount of labor to operate said quarry, and that, unless said dams are removed, the water from said creek will continue to percolate through and under said levees into said quarry, rendering it practically worthless, and the business of operating said quarry will be materially interfered with, and plaintiffs will be at a constant and increased expense on account thereof. That by reason thereof appellees aver damages. That the depositing of sand in said creek, and the maintenance of said dams, and the building of said levees by appellant materially interfered with the enjoyment of said property by the appellees, and will prevent the free use of said property, constituting a nuisance, which they ask the court to abate, and, unless enjoined, appellant threatens to and will continue to maintain said dams, and continue to deposit sand in said creek, and construct and maintain the levees it has commenced to build, and each of them to the irreparable injury of appellees. Appellees demand judgment for damages, etc.

The appellant vigorously attacks this complaint for want of sufficient facts, and insists that the complaint is not sufficient to withstand a demurrer, because of the improper joinder of parties, and a failure to aver the defendant was ever warned not to discharge sand into the stream, and that the pleading contained no independent averment that the discharge of sand into the stream by itself is working an injury, irreparable or otherwise.

As to joining parties plaintiff under our Code (section 263, Burns' Ann. St. 1901), it may be said that the statute is to have a liberal construction, but nevertheless the complaint must state a cause of action in favor of all the plaintiffs, and it must further appear that each of the plaintiffs has an interest in the subject of the action; that is, the grievance must be common to each, and the injury complained of, as in the case at bar, committed at the same time, by the same act, and that each party is interested in the same relief asked by the other, or some part of it. When these facts are made to appear, a joinder of parties, in our opinion, may be had, although their interest in the judgment may be unequal. Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540;Brumfield v. Drook, 101 Ind. 190;Holzman v. Hibben, 100 Ind. 338;Elliott v. Pontius, 136 Ind. 641, 35 N. E. 562, 36 N. E. 421;First National Bank, etc., v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185; The Home Ins. Co. v. Gilman, 112 Ind. 7, 13 N. E. 118; The Town of Sullivan v. Phillips, 110 Ind. 320, 11 N. E. 300;Young et al. v. The Board of Commissioners, etc., 25 Ind. 295;Tate et al. v. The Ohio, etc., Co., 10 Ind. 174, 71 Am. Dec. 309;Rowbotham et al. v. Jones, 47 N. J. Eq. 337, 20 Atl. 731, 19 L. R. A. 663;Demarest et al. v. Hardham, 34 N. J. Eq. 469;Robinson et al. v. Baugh, 31 Mich. 290;Snyder v. Cabell, 29 W. Va. 48, 1 S. E. 241; 2 Beach on Inj. § 1052; High on Inj. § 757. In the case at bar, while it may appear that one of the appellees is the owner of the real estate, and the other operating and conducting a stone quarry partly situated on the same land, yet each is complaining of the same identical alleged nuisance caused by the same acts, and each is interested in the event of the suit, and the relief which may be granted to one also inures to the benefit of the other, and not to permit them to join in this action would be to violate a plain rule of equity pleading enabling all such parties to join as plaintiffs in order that the court may make a final order and thereby prevent a multiplicity of suits. The Town of Sullivan v. Phillips, 110 Ind. 320, 11 N. E. 300. As stated in First National Bank, etc., v. Sarlls, supra: “They all claim one general right to be relieved from that which they insist is a nuisance, and which alike affects all of them. Their common danger and common interest in the relief sought, authorize them to join in the action.” Supporting the same rules, see Fleming v. Mershon, 36 Iowa, 413;Marselis v. Morris Canal, etc., Co., 1 N. J. Eq. 31;Shepard v. Manhattan R. Co., 117 N. Y. 442, 23 N. E. 30; Story, Eq. Plead. § 72. It is true, as has been said by appellant, that the wife cannot join the husband in an action where the remedy belongs to the husband, but it has been held that “a married woman may sue as sole plaintiff, under section 255, Burns' Ann. St. 1901, where the action concerns her separate property, or her husband may be joined with her as her coplaintiff.” City of New Albany v. Lines, 21 Ind. App. 380, 51 N. E. 346. Under section 255, Burns' Ann. St. 1901, a married woman may sue as sole plaintiff where the action concerns her separate property, and, as the land is the sole property of Mrs. Nicoson, she might and could have maintained this action upon her own account. There is conflict in the averments of the complaint as to whether or not appellees are jointly interested in the operation of the quarry. If they are, it could not be successfully contended that they could not join in this...