Symmes v. Prairie Pebble Phosphate Co.

• Decision Date: 25 July 1913
• Citation: 66 Fla. 27,63 So. 1
• Parties: SYMMES v. PRAIRIE PEBBLE PHOSPHATE CO. et al.
• Court: Florida Supreme Court

63 So. 1

66 Fla. 27

SYMMES v. PRAIRIE PEBBLE PHOSPHATE CO. et al.

Florida Supreme Court

July 25, 1913

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by E. P. Symmes against the Prairie Pebble Phosphate Company a corporation, and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In an action for a tortious injury to private rights claimed in oyster beds in the navigable waters of the state, the declaration should state that the asserted private rights do not cover any of the 'existing natural or maternal oyster beds in the waters of this state.'

A joint tort is essential to the maintenance of a joint action for damages therefor against several parties. For separate and distinct wrongs in no wise connected by the ligament of a common purpose, actual or implied by law, the wrongdoers are liable only in separate actions and not jointly in the same action.

Torts that are several, separate, and independent acts when committed do not become joint by the subsequent union or intermingling of their consequences, where no concert of tortious action or consequence is intended by the parties or implied by law.

Where a declaration alleges that 'the defendants and each of them, in the conduct of their respective businesses along or near the shore of' a navigable river, 'wrongfully and injuriously from day to day caused great quantities of mud and other refuse to be deposited and flow into said river above the point where' plaintiff's property was situated, and by reason thereof the plaintiff's property has been injured as specifically stated, such allegations do not show a joint tort by the defendants.

COUNSEL Hilton S. Hampton, of Tampa, for plaintiff in error.

P. O Knight, E. R. Gunby, and Wall & McKay, all of Tampa, and H K. Oliphant and Wilson & Swearingen, all of Bartow, for defendants in error.

OPINION

WHITFIELD J.

The declaration herein is as follows:

E. P. Symmes, by his attorney, H. S. Hampton, sues Prairie Pebble Phosphate Company, a corporation, the Coronet Phosphate Company, a corporation, the Phosphate Mining Company, a corporation, the Florida Mining Company, a corporation, Standard Phosphate Company, a corporation, Pierce Phosphate Company, a corporation, the Armour Fertilizer Works, a corporation, and the State Phosphate Company, a corporation, for that, whereas, heretofore, to wit:

'On the 6th day of October, A. D. 1908, the plaintiff was granted by the county commissioners of Hillsborough county, Fla., an exclusive right to construct an oyster bed for the propagation and cultivation of oysters in a portion of the bed of the Alafia river, described as follows:

'In front of lots 2 and 3, township 30 south, range 19 east, from low tidewater mark to the edge of the channel extending eastward between said low tidewater mark and the edge of said channel to where the west boundary line of said lot 3 intersects the waters south to the edge of the channel.

'And the plaintiff avers that thereafter, to wit, within the period of one year from date of said grant, he became possessed of, constructed, and planted a certain oyster bar for the cultivation of oysters within the limits above described in said grant; and in accordance with the said permit he has in all respects complied with the provisions of the law in reference to the acquisition, planting, and cultivation of said bed of oysters within the above-described limits and has complied with the said permit from the said county commissioners of Hillsborough county, Fla., and for a long period of time after the granting of said permit by the said county commissioners has utilized, used, and enjoyed the usufruct from said oyster bar or bed pursuant to said permit. And plaintiff avers that thereafter the defendants, and each of them, in the conduct of their respective businesses along or near the shore of the Alafia river above the point where the plaintiff's said property was situated, well knowing the premises, but continuing and wrongfully intending to injure and damage the plaintiff and to interfere with his possession, occupation, and enjoyment of said oyster bed, wrongfully and injuriously from day to day caused great quantities of mud and other refuse to be deposited and flow into said Alafia river above the point where the said property of the plaintiff was situated, and still continue to wrongfully and injuriously from day to day cause to be discharged from their respective phosphate plants into said river at said points large quantities of mud and refuse; and by reason of the discharge of said mud and refuse the regular flow of the said river has been gradually interfered with in that the said mud and said refuse discharged as aforesaid by the defendants into said river has diverted the flow thereof, has caused the channel of the said river to become clogged at or near said point where the said oyster bed of the plaintiff is situated, and has covered and destroyed the same with said mud and refuse, as well as the oysters therein, and plaintiff has thereby and still is greatly damaged by means of the premises aforesaid, and his said property of the value of $15,000 has been destroyed.

'Wherefore plaintiff says that he has been injured and has sustained damages in the sum of $15,000; therefore he brings suit claiming damages in the sum aforesaid.

'[Signed] H. S. Hampton,

'Attorney for Plaintiff.'

To this declaration each of the above-named defendants filed a separate demurrer, among the grounds of which are the following:

'(3) Because there is nothing in the declaration to show that the bed in question was not a natural or maternal oyster bed in the waters of this state; and for aught that appears the plaintiff may have used a natural or maternal oyster bed for the purpose of planting and propagating his oysters thereon.'

'(11) Because it does not appear from the declaration that there has been any common design or concert of action among the defendants to cause or produce the injury complained of, but that all of the alleged acts of the defendants have been independent ones upon their part.

'(12) Because this defendant cannot be held liable for...