City of Valparaiso v. Moffitt
| Decision Date | 28 February 1895 |
| Docket Number | 1,537 |
| Parties | CITY OF VALPARAISO v. MOFFITT ET AL |
| Court | Indiana Appellate Court |
From the Porter Circuit Court.
Judgment affirmed.
N. L Agnew and D. E. Kelly, for appellant.
N. J Bozarth, for appellees.
The appellees, plaintiffs in the court below, averred in their complaint that they were the owners of a certain tract or parcel of real estate, containing about eight and one-half acres, and situate within the corporate limits of the city of Valparaiso; that there were situated on said tract two dwelling houses, one of which was occupied by the plaintiffs as a residence, and the other used as a tenant house and by them let for hire; that said lands were also used for garden and pasture purposes; that there was a natural water course, known as Crosby's Run, passing through and over said lands, the waters of which, previous to the grievances complained of, came from natural springs and was pure and wholesome, and suitable for domestic purposes; that said stream, in its natural condition and at an ordinary stage of the water, did not exceed from two to four feet in width; that about five years prior to the commencement of this action, the defendant, the city of Valparaiso, constructed a system of sewers and underground pipes for the sewerage and drainage of said city; that said pipes and sewers were so constructed that they flowed or emptied their contents into Crosby's Run above plaintiffs' land; that the filth, waste and refuse matter emptied by the sewers into Crosby's Run poisoned and polluted the waters thereof, and rendered them unfit for domestic use; that the surface waters were collected into the said pipes and drains and emptied into Crosby's Run; that in times of great rainfall the waters of that stream overflowed its banks and spread over and upon plaintiffs' lands and caused cess-pools of stagnant water and deposited the filth and noxious matter from said sewers thereon; that noxious and unhealthy odors arise from the waters of said stream and from the filth and waste matter, rendering plaintiffs' property unhealthy and depreciating both its market and rental value.
The defendant filed an answer in six paragraphs, the first being a general denial. Demurrers were sustained to the second and third and overruled as to the fourth, fifth and sixth. The plaintiffs replied in two paragraphs. A demurrer was overruled as to the second. The cause was tried by a jury which returned a general verdict for the plaintiffs.
The errors assigned are the action of the trial court in sustaining the demurrers to the second and third paragraphs of answer and in overruling the demurrer to the second paragraph of the reply, and in overruling the motion for a new trial.
The second and third paragraphs of the answer are the same except one is pleaded as a full defense and the other as a partial defense. These answers state in substance that one John W. Stratton owned and operated gas works in the city of Valparaiso; that the waste, noxious and refuse matter from said gas works flowed through a sewer and emptied into Crosby's Run above plaintiffs' land, and that a part of the pollution and damages complained of were caused thereby; that the sewer through which the refuse matter from said gas works flowed, had been maintained and operated by the city and Stratton for more than three years; that in 1892 the plaintiffs in this action brought a suit against Stratton to recover damages for the pollution of Crosby's Run caused by the sewer from the gas works, being the same wrongs complained of in this action; that while said suit was pending it was compromised and settled by an agreement entered of record in which it was stipulated that Stratton should pay the plaintiffs the sum of sixty-five dollars in full satisfaction of all damages caused by said sewer up to the first day of July, 1892, and that Stratton was to have the privilege of emptying the contents of said sewer in said stream until that date; that said suit was accordingly settled and dismissed and the money paid. The questions arising on the sufficiency of these answers are the main points presented for our consideration in this appeal. The appellant contends that under the facts stated in these answers it and Stratton were joint tort feasors and that the release of one operated as a release of the other.
Primarily every person is liable for all the injury caused by him. If he acts separately he is separately liable for all the injury. If he acts jointly with others he is both jointly and severally liable for all the injury. These are the general rules, to which there are exceptions. The rule is also well settled that an injured party can have but one satisfaction for the same injury. To this rule there are no exceptions. He may have several judgments against different persons and in different amounts, but the payment of one operates as a satisfaction of all. Westfield Gas, etc., Co. v. Abernathy, 8 Ind.App. 73, 35 N.E. 399; South Bend Mfg. Co. v. Liphart, 12 Ind.App. 185, 39 N.E. 908; American Exp. Co. v. Patterson, 73 Ind. 430.
Concert of action and a common intent and purpose are generally necessary to make two or more persons joint tort feasors and jointly liable. If several distinct acts of several persons have contributed to a single injury, but without concert of action or common intent, there is generally no joint liability. Thus, in Miller v. Highland Ditch Co., 87 Cal. 430, 22 Am. St. Rep. 254, 25 P. 550, the owners of different tracts of land, acting separately, constructed and maintained different ditches, whereby waters were turned into a canon and then commingled and passed through it and overflowed the plaintiffs' land, covering it with sand and debris. It was held that the several wrongdoers might be united in one suit as defendants to enjoin them from further injuring the plaintiffs' land, but that they were not jointly liable; that each was liable for the separate injury produced by him, and that no joint recovery for damages could be had in such proceeding.
In rendering the decision, the court made use of this language ...
To continue reading
Request your trial