Hellams v. Switzer

• Decision Date: 30 November 1885
• Citation: 24 S.C. 39
• Parties: HELLAMS v. SWITZER.
• Court: South Carolina Supreme Court

24 S.C. 39

HELLAMS v. SWITZER.

Supreme Court of South Carolina.

November 30, 1885

1. In what cases several causes of action may be united in one complaint, and the remedy for failing to state them separately, considered.

2. Where several plaintiffs, severally owning adjacent tracts of land, join in one action for injuries to their land caused by a dam of the defendant, and claiming damages in solido , the cause of action is single, and a demurrer upon the ground of misjoinder of causes of action will not lie.

3. But the injuries being separate and distinct, the plaintiffs could not jointly sue to recover damages therefor; and a demurrer, interposed orally at the hearing, tat the complaint did not state facts sufficient to constitute a cause of action, was properly sustained.

4. A civil action will not lie to recover damages for injuries caused by a dam, unless special damage to plaintiff be alleged in the complaint; for a public nuisance the only remedy is by indictment.

5. An action for damages on account of a private nuisance and to abate the same is a legal, not an equitable, action. A prayer for equitable relief does not change the nature of the action.

6. The joinder of parties under sections 138 and 140 of the code of procedure considered.

Before PRESSLEY, J., Laurens, December, 1884.

This action was commenced August 11, 1884. The opinion fully states the case.

Messrs. Holmes & Simpson , for plaintiffs.

Messrs. Ferguson & Young , contra.

OPINION

MR JUSTICE MCGOWAN.

This was an action to abate an alleged nuisance and for damages against the defendant Switzer for erecting on his land immediately below and adjoining the lands of the first named plaintiff a dam across a stream known as North Raburn Creek in Laurens County. The plaintiffs, R. Y. and P. M. Hellams, as tenants in common, owned one tract of land immediately above the land of the defendant, and each of the other nine plaintiffs, viz., W. L. Hopkins, J. R. Brownlee, G. W. Anderson, J. R. Childress, D. D. Harris, Hannah Babb, William Hellams, L. R. Babb, and Gideon Yeargin, owns a separate and distinct parcel of land on the creek above the aforesaid dam, and none of them has any interest in the lands of either of the others named.

The plaintiffs all unite in one complaint and in stating one cause of action as follows: " III. That the defendant, John R. Switzer, has recently, against the wishes and the solemn protest of these plaintiffs and manifold other citizens of the community surrounding these farms, erected upon his lands immediately below and joining the lands of the first plaintiffs, R. Y. and P. M. Hellams and W. L. Hopkins, a considerable dam across the body of the said North Raburn Creek, and thereby has and is obstructing the flow and the necessary drainage of the said lands by means of the channel of the said creek, causing the said channel to fill up with sand and other rubbish above the said dam and along through the lands of these plaintiffs so as to materially injure the lands of these plaintiffs and render them useless for agricultural purposes. IV. That these plaintiffs are damaged by the said overflow of water and sand upon their land and the obstruction of their proper drainage, by reason of the said dam erected by the said defendant, in the sum of five thousand dollars. V. These plaintiffs further allege that the said dam, obstructing the water of the said creek and causing it to spread out over so much land in and above the pond, is the cause of chills, fevers, and other malarial diseases in the country around, and makes it dangerous for their families to remain upon the premises, and that the said dam is a source of inestimable injury and damage to these plaintiffs; that said dam is a nuisance, hurtful and injurious to the health of the families and tenants of these plaintiffs, and a great damage to other property," & c. And the said plaintiffs pray that the aforesaid nuisance may be abated; that the said defendant be required to remove the said dam forthwith, and all other obstacles placed by him in said creek, and for a perpetual injunction, and for $5,000 damages, & c.

The defendant demurred to the complaint upon the ground " that several causes of action were improperly united in this, that it appears upon the face of the complaint that the several plaintiffs are owners of separate and distinct tracts of land, and that one plaintiff has no interest in the lands of the others," & c. On the trial of the cause, the defendant interposed the further oral demurrer " that the complaint does not state facts sufficient to constitute a cause of action."

On hearing the cause, Judge Pressley passed the following order: " It is ordered and adjudged, that the first ground of demurrer be overruled. It is further ordered and adjudged, that the second ground of demurrer be sustained, with leave to the plaintiffs to amend their complaint if they desire to do so."

The plaintiffs and defendant both appeal-the plaintiffs on the ground that his honor erred in holding that the complaint did not state facts sufficient to constitute a cause of action; the defendant on the ground that his honor erred in overruling the written demurrer of the defendant, and in not holding that several causes of action had been improperly united.

First. As to the alleged misjoinder of several causes of action. There is no doubt that there may be more than one cause of action in a complaint. Indeed, under the reformed procedure there may be causes of action either legal or equitable, or both, and to any number; but they must be harmonious. The code prescribes the character of those which may be thus united in the same complaint. Section 188 declares that " the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of (1) the same transaction or transactions connected with the same subject of action; or (2) contract express or implied; or (3) injuries with or without force to person and property, or either, & c. *** But the causes of action must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated," & c.

These provisions plainly indicate that there is a limit to this authorized union; and when the complaint contains more than one cause of action, the very important question may arise whether they are of such a character as may be joined in the same action. But, of course, there must be more than one cause of action stated in the complaint before that question can arise; and to be a cause of action, the matter must be stated separately-" that is, each must be set forth in a separate and distinct division of the complaint, in such manner that each of these divisions might, if taken alone, be the subject of an independent action." Pom. Rem. , § 442; Hammond v. Railroad Company , 15 S.C. 10. If the plaintiff endeavors to state more than one cause of action, and merely fails to give them, in form and manner, distinct and separate existence, it is considered a vice in pleading; but the remedy is not by demurrer, but by notice to make the pleadings more definite and certain by separating and distinctly stating the different causes of action. Pom. Rem. , § 447.

Now, as to this case, are there two or more causes of action stated, or attempted to be stated, in the complaint? It seems to us not. True, there are several plaintiffs, each of whom owns a particular tract of land, without having anything in common with the other plaintiffs, other than alleged injury to health and property arising from the same cause. There is no effort to give any one of these plaintiffs a separate and distinct cause of action, alleging injury to himself, and stating the amount of damage done to him separately. On the contrary, while the complaint does state the separate ownership of the different parcels of land, it is all done jointly in the same paragraph or division, stating one single cause of action, as if they were tenants in common of the different tracts, and claiming for all together damages in solido , to the extent of five thousand dollars, without indicating what part of the common damage was the share of the plaintiffs respectively. The plaintiffs having made no effort to state, perfectly or imperfectly, several causes of action, but all having joined in one, it seems to us that this is not a case for the application of the rules which govern the joinder of actions, but rather of those which apply to the joinder of parties. If so, the written demurrer of the defendant complaining of a misjoinder of causes of action does not reach the point which the defendant manifestly intended to make, in reference to the separate ownership of the lands by the different plaintiffs in the united action. Whether the several plaintiffs, owning the different parcels of land claimed to be damaged, could be united in one joint action, is a different question, which we will now proceed to consider.

Second. Did the complaint state facts sufficient to constitute a cause of action? We have just seen...