Brose v. Twin Falls Land & Water Co.

• Decision Date: 18 June 1913
• Citation: 133 P. 673,24 Idaho 266
• Court: Idaho Supreme Court
• Parties: ROBERT BROSE, Appellant, v. TWIN FALLS LAND & WATER CO. and TWIN FALLS CANAL CO., Respondents

133 P. 673

24 Idaho 266

ROBERT BROSE, Appellant, v. TWIN FALLS LAND & WATER CO. and TWIN FALLS CANAL CO., Respondents

Supreme Court of Idaho

June 18, 1913

ACTION FOR DAMAGES-JOINT TORT-FEASORS-JOINT AND SEVERAL LIABILITY.

1. When two or more persons unite in the commission of a wrong, or where separate and independent acts of negligence by different persons all concur as a proximate cause in producing an injury, such wrongdoers are jointly and severally liable for the damage resulting therefrom.

2. In order to hold two or more defendants jointly liable as tort-feasors, there must be some joint or concurrent act or community of action or a neglect of some common duty, or it must appear that the several wrongful acts of the defendants done at different times all concurred in their effects as a single act to produce the injury complained of.

3. Under the statute of this state, sec. 3660 of the Rev. Codes every successive owner of property who neglects to abate a continuing nuisance upon or in the use of such property created by a former owner is liable therefor in the same manner as the one who first created it, but this statute does not mean that such subsequent owner is liable for damages caused prior to his acquiring the ownership, possession or control of the property.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

Action for damages. Judgment for defendant. Plaintiff appealed. Affirmed.

Demurrer to the complaint sustained and judgment affirmed. Costs awarded in favor of respondents.

Longley & Hazel and Taylor Cummins, for Appellant.

If the injury or damage is the direct result of the concurring or contributing acts of both defendants, they are jointly and severally liable for the injury, and one action will lie against all or any one of them for the damages sustained. (38 Cyc. 483; Gunder v. Tibbits, 153 Ind. 591, 55 N.E 762; Drown v. New England Tel. & Tel. Co., 80 Vt. 1, 66 A 801.)

"When the negligence of two or more persons concurs in producing a single indivisible injury, they are jointly and severally liable, although there was no common duty, common design or concert of action." (Walton v. Miller, 109 Va. 210, 132 Am. St. 908, 63 S.E. 458; Nordhaus v. Vandalia R. Co., 242 Ill. 166, 89 N.E. 974; Probst v. Hinesley, 133 Ky. 64, 117 S.W. 389; Slater v. Mersereau, 64 N.Y. 138; Peru Heating Co. v. Lenhart, 48 Ind.App. 319, 95 N.E. 680; Allison v. Hobbs, 96 Me. 26, 51 A. 245; Fortmeyer v. National Biscuit Co., 116 Minn. 158, 133 N.W. 461, 37 L. R. A., N. S., 569; Strauhal v. Asiatic S. S. Co., 48 Ore. 100, 85 P. 230; Yealy v. Fink, 43 Pa. 212, 82 Am. Dec. 556; Jones v. Spokane P. & S. Ry. Co., 69 Wash. 12, 124 P. 142; City of Kansas City v. Slangstrom, 53 Kan. 431, 36 P. 706; Pilcher v. Smith, 4 Ala.App. 444, 58 So. 672; Wisecarver & Stone v. C. R. I. & P. Ry. Co., 141 Iowa 121, 119 N.W. 532; Cleveland C. C. & St. L. Ry. Co. v. Gossett, 172 Ind. 525, 87 N.E. 723; Day et ux. v. Louisville C. & C. Co., 60 W.Va. 27, 53 S.E. 776, 10 L. R. A., N. S., 167; Haubelt Bros. v. Hirsch (Tex. Civ. App.), 131 S.W. 435.)

Sweeley & Sweeley, for Respondent Twin Falls Land & Water Co.

Bowen & Porter, for Respondent Twin Falls Canal Co.

A person continuing a nuisance is not liable for damages caused by the operation of the nuisance by his predecessors in interest. (Sutherland on Damages, 3d ed., sec. 1059; Watson v. Colusa etc. Co., 31 Mont. 513, 79 P. 14; Karns v. Allen, 135 Wis. 48, 115 N.W. 357, 15 Ann. Cas. 543.)

"An action at law for damages cannot be maintained against several persons as parties defendant when each acted independently of the others and there was no concert or unity of design or action between them. It is held that in such a case the tort of each defendant is several when committed, and that it does not become joint because afterward its consequences united with the consequences of several other torts committed by other persons." (Kinney on Irrigation and Water Rights, 2d ed., sec. 1685; Pomeroy on Code Remedies, 4th ed., secs. 208, 209; Sutherland on Damages, 3d ed., secs. 137, 141, 142, 1059; Wallace v. Drew, 59 Barb. (N. Y.) 413; Bonte v. Postel, 109 Ky. 64, 58 S.W. 536, 51 L. R. A. 187; Swain v. Tennessee etc. Co., 111 Tenn. 430, 78 S.W. 93, and cases cited; Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. 254, 25 P. 550; Sloggy v. Dilworth, 38 Minn. 179, 8 Am. St. 656, 36 N.W. 451; Chipman v. Palmer, 77 N.Y. 51, 33 Am. Rep. 566.)

Persons who act severally and independently, each causing a separate and distinct injury, cannot be sued jointly, even though the injury will have been precisely similar in character and inflicted at the same time. A joint tort is essential to the maintenance of a joint action. For separate and distinct wrongs, separate actions must be brought. (Livesay v. First Nat. Bank, 36 Colo. 526, 118 Am. St. 120, 86 P. 103, 6 L. R. A., N. S., 598; 15 Ency. Pl. & Pr. 562; Keyes v. Little York etc. Co., 53 Cal. 724; Smith v. Day, 39 Ore. 531, 64 P. 812, 65 P. 1055; Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523; Sedgwick on Damages, 9th ed., sec. 36a, citing Post v. Hartford St. Ry., 72 Conn. 362, 44 A. 547.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This is an appeal from the judgment. The court sustained a demurrer to the complaint, on the ground that there was a misjoinder of parties defendant. Plaintiff declined to amend and judgment of dismissal was entered.

The action is prosecuted for recovery of damages caused by seepage and percolating waters from the canal owned by the Twin Falls Canal Co. The complaint, among other things, alleges that the plaintiff is the owner of certain lands in Twin Falls county under the canal system owned by the Twin Falls Co. The complaint charges that the defendant, Twin Falls Land & Water Co., in the years 1905 and 1906, constructed an irrigating canal, commonly known as the High Line Canal of the Twin Falls Canal System, over and across the plaintiff's land and that it owned, was in the possession of and operated the canal and system until the 30th day of November, 1909, on which date the land and water company sold and transferred the entire canal system to its co-defendant, the Twin Falls Canal Co., and that the latter company thereupon acquired the title to the property and entered into possession and control thereof.

For convenience we will hereafter refer to the Twin Falls Land & Water Co. as the Land and Water Co. and to the Twin Falls Canal Co. as the Canal Co.

The complaint then charges that the Land and Water Co., in the construction of the canal, negligently failed to take such means as were necessary to prevent the water flowing in the canal from percolating, seeping and flowing into and upon the lands of the plaintiff, and that from the time of the construction of the canal until the transfer of the same to the Canal Co., the Land and Water Co. was the sole owner and in full control of the property, and that from the time of the transfer until the commencement of this action the Canal Co. was the owner and in full control of the property, and that both defendants at all times since the construction of the canal, by one continuous negligent act participated in by both of defendants during the periods aforesaid, negligently caused the water to flow in said canal so as to permit the same to percolate, seep and flow onto the lands of the plaintiff to his damage in the sum of $ 5,000.

The complaint also alleges that the Land & Water Co. knew that the canal was not properly constructed and that the waters were seeping and percolating into and upon the lands of the plaintiff and injuring and damaging the same, and that the Canal Co. at the time it acquired title to and took possession of the property knew of the defects in the system and that damage was being done to the plaintiff, and that it continued to maintain and operate the canal without repairing or improving the same.

The complaint contains a second count for the same tort and injury, but it is unnecessary to here recite any of the allegations of that count. The trial court sustained a demurrer to this complaint, upon the ground that it improperly united two causes of action, in that it united a cause of action against the Land and Water Co. alone with a cause of action against the Canal Co. alone and that the two companies were not jointly liable on either cause of action.

The only question presented for our consideration is whether the Land and Water Co. and the Canal Co. are jointly liable for the tort and damage alleged in the complaint. In determining this question it is important to understand clearly the cause of action alleged. When reduced to its last analysis, the complaint charges that the Land and Water Co. constructed this canal and was the sole owner thereof, and operated the same until November 30, 1909, and that on the latter date it sold and transferred the entire system and the possession and control thereof to the Canal Co. It then alleges that this injury and damage has been continuing from the time the Land & Water Co. began to run water through the canal up to the time of the commencement of this action.

The general rule of law with reference to the joint liability of trespassers and tort-feasors is well established and everywhere recognized, but it has proven one of the most difficult rules of application on account of the infinite diversity and variety of circumstances under which these wrongs are committed or which lead up to their commission.

The supreme court of Indiana, in Cleveland etc. R. R. Co. v Hilligoss, 171 Ind. 417, 131 Am. St. 258, 86 N.E. 485, have stated the rule as to those cases in which joint liability will...