Mau v. Stoner
| Citation | 15 Wyo. 109,87 P. 434 |
| Parties | MAU v. STONER ET AL |
| Decision Date | 17 November 1906 |
| Court | United States State Supreme Court of Wyoming |
Rehearing Denied April 15, 1907, Reported at: 15 Wyo. 109 at 135.
ERROR to the District Court, Uinta County, HON. CHARLES E CARPENTER, Judge.
Action brought by Frank A. Mau against John W. Stoner, Aaron Stoner and Victor Forgeon. From a verdict and judgment in favor of defendants, the plaintiff brought error. The facts are stated in the opinion.
Affirmed.
J. H Ryckman and S. T. Corn, for plaintiff in error.
The gist of the action is the destruction of plaintiff's crops, not the wrongful diversion of the water; the injury was the combined result of the diversions of the water of plaintiff by the defendants at divers times. (Murray v McGarigle, 69 Wis. 491.) The law does not require that plaintiff show some conspiracy or combination between the defendants as a condition to recovery. The defendants were properly joined pursuant to the Code provisions and a separate judgment would be allowable if warranted by the evidence. Plaintiff was entitled to judgment against all defendants, for all were proven guilty. The petition does not allege a joint liability. Misjoinder would not defeat recovery against those proven liable. All concerned in inflicting the injury are individually liable. All having contributed to the injury, the damages would be what the most culpable ought to pay. (28 Ency. L., 611, 613.) Running all through the best considered cases there are two principles stated: (1) That where a person undertakes to do an unlawful act resulting in injury to another, the fact that others contributed to that result would not exonerate him from the consequences; (2) that if the defendants unite or participate in causing a single injury, even though acting independently of each other, and, therefore, without any common purpose, or unity of design or concert of action, they are jointly and severally liable. (Bunting v. Hogsett, 139 Pa. St. 363; Klander v. McGrath, 35 Pa. St. 128.) Not having demurred, the defect of misjoinder, if any, was waived. (R. S., Sec. 3537.) But it was not necessary for plaintiff to establish a joint liability.
There is a class of cases, however, where there is neither negligence nor wrongful intent on the part of the wrongdoers, nor privity, nor concert, nor a common purpose, nor community in the wrong doing, nor unity of design, and yet all the defendants are jointly and severally liable because it is impossible to distinguish the portion of the injury caused by each. (Allison v. Hobbs, 96 Me. 26; Martin v. Farrell, 72 N.Y.S. 934; R. Co. v. Shanley, 107 Mass. 577; Corey v. Havener, 65 N.E. 69; Turner v. Hitchcock, 20 Iowa 316; Sloggy v. Dilworth, 8 Am. St. 656.)
The objection as to misjoinder made at the trial came too late. (Mackay v. Fox, 121 F. 487; Burbank v. Bigelow, 154 U.S. 558.) The agreement to enlarge the ditch shows concert of action, unity of design, community of interest and such privity among the defendants, if there were nothing else in the record, as to impose upon the court the duty to instruct the jury that the defendants were joint tort-feasors and jointly and severally liable to the plaintiff for the damage he had sustained, and much more than enough to put the defendants upon their proof upon that proposition. The taking of the water by John W. Stoner was presumably for all the parties to be benefited under the contract between Mau and Stoner. This with other items of evidence was sufficient to require the facts to be submitted to the jury; and the court erred in directing a verdict. But if the petition charged the defendants "jointly" with the diversion of plaintiff's water, and if the defendants in taking it, which they admit in the joint answer, took it independently of one another, they ought to have pleaded that fact each for himself in a separate answer, and not having done so they waived the objection to the petition and lost the right to say on the trial that they took it otherwise than as alleged in the petition.
Water rights in this state are matters of public record and if properly pleaded they cannot be denied by the opposing party, at least on information and belief, and thus a most important issue in this case could have been disposed of on the pleadings. (Mulcahy v. Buckley, 100 Cal. 484; Buller v. Sidell, 43 F. 116; Roblin v. Long, 60 How. Pr., 200; Union Co. v. Chippewa, 47 Wis. 246.)
Possession and ownership of land may be proven by parol. (DeWold v. Williams, 69 N.Y. 622; Reed v. Price, 30 Mo. 422; Bedden v. Clark, 76 Ill. 338; Knapp v. Smith, 27 N.Y. 277.)
Does the fact that the joint answer of the defendants shows they jointly petitioned the District Court to have Somsen appointed to take water from the Mau Canal and give it to them tend to prove a "combination," or "confederation," or a "concert" among the defendants to take water from the Mau Canal? If so, it was error to direct a verdict for the defendants. The answer showing these things, it was alone sufficient to put the defendants upon their proof and to send the case to the jury upon the question as to whether the defendants were joint tort-feasors. It was the duty of the court to construe the contract under which the defendants claim to have acquired an interest in the Mau Canal, and to construe the pleadings in the case and as matter of law to have said these contain some evidence of privity among the defendants, some evidence of community of interest, of concert of action; how much the court will leave to the jury to consider with all the evidence in the case. Where there is any evidence, though slight, tending to establish plaintiff's case a peremptory instruction to find for defendant is error.
The essence of this case is, did the plaintiff lose his crops by the acts of these defendants? And if so, whether each of the defendants contributed to the injury, was a question for the jury. (Corey v. Havener, 65 N.E. 69; R. Co. v. Shanley, 107 Mass. 207; Owens v. Derby, 3 Ill. 26; 2 Hilliard, Torts, 296; Turner v. Hitchcock, 20 Iowa 316; Ellis v. Howard, 17 Vt. 330; Brown v. City, 88 N.W. 1070; Allison v. Hobbs, 96 Me. 26; Martin v. Farrell, 72 N.Y.S. 934.)
The court should have received when offered by plaintiff the record of a previous case that came to this court between these parties. That record has not been brought into the bill of exceptions, but this court will take judicial notice of its own records. (Stallcup v. Tacoma, 13 Wash. 141; Gaslight Co. v. Dist. Col., 161 U.S. 316; R. Co. v. Leath, 84 F. 105.) A judgment bars not only every defense actually set up, but every defense which might have been urged. (Crownell v. Sac, 94 U.S. 351; Burlen v. Shannon, 99 Mass. 200; Howard v. Huron, 5 S. Dak., 539.)
The court erred in striking out the evidence pertaining to the appointment of the water distributer. The defendants were liable for the acts of that party, they having secured his appointment. (Connally v. Woods, 31 Kan. 359; Sprague v. Kneeland, 10 Wend., 161; Cooley on Torts 156; 3 Ency. L., 245, 246.) The defendants pleaded the appointment of Somsen as a complete defense. The plaintiff replied that the appointment was void and no defense, and was prepared to prove it. This the court would not permit and the ruling was error. The decree is void insofar as it attempts to award the defendants any interest in the Mau Canal, or any of the water therein, for four reasons: (1) Because it is vague and uncertain. It gives them the water in the canal above five cubic feet, "if any." This phrase means nothing as a finding of fact or a conclusion of law, and no valid decree can be based upon it. (5 Pl. & Pr., 1063; 11 id., 933.) (2) Because there is no evidence to base such a decree upon. (3) Because the decree does not conform to the pleadings. (3 Pl. & Pr., 357; 5 id., 956; 11 id., 868, 873.) (4) Because neither John W. Stoner nor his privies, the other defendants, can...
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