90 P. 228 | Idaho | 1907
This action was brought by fourteen plaintiffs against the defendants, asking the court to compel
Said demurrer was overruled by the court. The Consolidated Canal Company thereafter filed its answer, disclaiming any interest in the subject matter of the suit. The appellant, the Bancroft Land and Irrigation Company, filed its answer, admitting its interest in and control of the canal system in question, specially denying that certain of the respondents had any water rights whatever for their lands, and denying that appellant had ever failed to. furnish water to the other respondents in the amount to which they were entitled, and denying that one cubic foot of water per second of time was or is necessary to irrigate each fifty acres of the respondents’ lands; and alleging that fifty inches of water was sufficient to irrigate eighty acres thereof; and alleging that certain sums were due from said respondents who are plaintiffs in the action, to whom water had been furnished by appellant, for the rental price thereof.
Upon the issues thus made the cause was tried by the court without a jury. Findings of fact and conclusions of law were filed and judgment entered adjudging that the said respondents were the owners of the water rights in the canal system of appellant, pursuant to the provisions of the water deeds held by said respondents, and that one cubic foot of water per second of time, flowing continuously day and night, during the irrigation season, was and is necessary for the ir
The first error assigned is the overruling of the demurrer to the complaint. It is contended by counsel for the appellant that the demurrer ought to have been sustained on the ground of misjoinder of parties plaintiff and misjoinder of causes of action. The action was brought by fourteen persons owning distinct and separate tracts of land, upon fourteen distinct and separate contracts, which the predecessors of the appellant had made with the plaintiffs. The contract entered into by the several parties is entitled a “Water Deed,” which water deeds are all uniform in their provisions, printed blanks having been used, and the rights and obligations of the plaintiffs and defendants in each case under the terms and provisions of said water deeds are substantially the same, with the exception that the water agreed to be furnished under the terms and provisions of said deeds was to be used upon different tracts of land, and it is stipulated that the ditch company sells and conveys to each of the parties, naming them in their respective deeds, “the right to use water flowing through the canal of said company on the tract of -— acres hereinbefore mentioned, the quantity of water represented by said right being all that is necessary to irrigate said land, said right being subject to the terms and conditions hereinbefore expressed.”
The main contention in this case is the quantity of water per acre that each of the plaintiffs is entitled to for the irrigation of their lands under that provision of the contract, to wit: “All that is necessary to irrigate said land.”
Here, then, we have fourteen plaintiffs under fourteen separate and distinct written contracts wherein the agreement or stipulation with each is that the appellant will furnish each of them “all (water) that is necessary to irrigate
This action is brought for the specific performance of said written contracts. Each of the plaintiffs bases his action upon the contract executed to him alone. Neither of the plaintiffs has any interest whatever in the contract of either of the other plaintiffs. It is a well-settled rule that two or more persons having distinct causes of action, although against the same defendant, may not join as plaintiffs. (15 Ency. of Pl. & Pr. 733; Martin v. Davis, 82 Ind. 38; Tate v. Ohio R. Co., 10 Ind. 174, 71 Am. Dec. 309; Goodnight v. Gore, 30 Ind. 418; McIntosh v. Zaring (Ind.), 38 N. E. 231; Bold v. Yaw, 46 Iowa, 323; Palmer v. Waddell, 22 Kan. 352; Pelly v. Bowyer, 7 Bush (Ky.), 513.)
It is contended by counsel for respondents that this action is in substance and form similar to what is commonly known and designated as “water suits,” and is in the nature of an action to quiet title, and that the subject matter of this action is the water flowing in said canal. We cannot agree with that contention. As we view it, this action was brought to determine the amount of water that the appellant must deliver to each of the plaintiffs for the proper and necessary irrigation of his land under his contract. The question of a water right, the date of its location and the amount of the appropriation and other questions that naturally arise in what is known as a water suit to settle the rights of a number of appropriators located on the same stream are not involved in this case. This is a dispute between the canal owner and those to whom it has agreed to deliver water for the irrigation of their lands, as to the quantity or amount of water required for the proper irrigation of such lands. It does not involve carrying water through the ditch; it only involves the quantity to be delivered to each of the plaintiffs.
“Under the greatest diversity of circumstances and the greatest variety of claims arising from unauthorized public acts, private tortious acts, invasion of property rights, violation of contract obligations, and notwithstanding the positive denials by some American courts, the weight of authority is simply overwhelming that the jurisdiction may and should be exercised either on behalf of a numerous body of separate claimants against a single party, or on behalf of a single party against such a numerous body, although there is no ‘ common title’ nor ‘community of right’ or of ‘interest in the subject matter,’ among these individuals, but where there is and because there is merely a community of interest among them in the question of law and fact involved in the general controversy, or in the kind and form of relief demanded and obtained by or against each individual member of the numerous body. ’ ’
And in subdivision 3 of section 245 of the same work, the author, in discussing the possible conditions in which that doctrine may apply, -says:
“Where a number of persons have separate and individual claims and rights of action against the same party, A, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter might be settled in a single suit brought by all these persons uniting as coplaintiffs, or one of the persons suing on behalf of the others, or even by one person suing for himself alone. The case of several owners of distinct parcels of land upon which the same illegal assessment or tax has been laid is an example of this class.”
It seems to us that this is a very different case from one involving the illegal assessment of taxes, for the question involved in a case of that kind is whether the tax is legal or not, and naturally affects all people upon whom such assessment has been levied. In the suit at bar, the main question is the
A number of other authorities are cited by counsel in support of their contention to the effect that such suits may be brought by numerous plaintiffs in order to prevent a multiplicity of suits. We recognize the rule as laid down by those authorities, and Mr. Pomeroy, in said section 245 above cited, reduces the possible conditions in which a multiplicity of suits can arise into four classes and states in section 249 as follows: “The very object of preventing a multiplicity of suits assumes that there are relations between the parties, out of which other litigations of some form might arise.” This means, of course, out of the same subject matter. In the case at bar, either of the plaintiffs would only have to bring one action against the appellant to have the question of the quantity of water required to properly irrigate his land determined. He would have no occasion for another suit against the defendant, so far as the record shows, for a complete settlement of that question.
Counsel in their brief ask this question: “Of what advantage could it have been to the defendant in this case to have had fourteen distinct suits brought against it to settle the questions adjudicated in this case?” It is not a question of advantage to the defendant; it is a question of misjoinder of parties plaintiff, for if it depended on a question of advantage to the defendant, these fourteen plaintiffs, if they held fourteen promissory notes against the defendant, might all join in a suit because it would be of advantage to the defendant to have them all settled in one suit instead of fourteen separate suits. The rule for the prevention of a multiplicity of suits does not rest on the advantage to the defendant.
It is further contended that it was important that a uniform construction be placed upon the water deeds or contracts. The question of construction of said water deeds is not involved in this case. The main question is as to the quantity of water necessary to properly irrigate each of the plaintiffs’ lands. As a matter of fact, the court came to the
It appears to us that this is a very different suit from an ordinary water suit. In a water suit, an appropriator from a certain stream would have to bring an action against each and every other appropriator from the same stream before he could have his rights finally adjudicated as to all of such appropriators. His bringing a suit against one appropriator would not settle his rights; it would leave him with other litigation to settle them, and for that reason he is permitted to join as plaintiff or defendant every other appropriator of water from the stream. This is a very different suit— there is no issue raised as to the priority of the rights of these plaintiffs. As before stated, the only question presented by each of the plaintiffs is: How much water is necessary to properly irrigate his land? After that has been determined, if a deficiency or shortage of water should occur, then the appellant would be required to distribute to each party his pro rata share of the water based on the amount it took to properly irrigate his land as determined by the court.
The court, in its findings of fact, found that several of the plaintiffs were indebted to the appellant for the rental of water, and entered .judgment against each of such plaintiffs for the amount found to be due. It also appears from the findings of fact that the question was mooted, at least, as to the amount of damages that each of the plaintiffs had sustained by reason of the failure of .the appellant to fur
There is no community of interest whatever between the plaintiffs and we know of nó rule that would permit the plaintiffs to join in this action, no more than in an action on promissory notes held by each of fourteen plaintiffs against one defendant. The demurrer, therefore, should have been sustained and the cause must be remanded, with directions to the trial court to sustain said demurrer.
The costs of this appeal are awarded to the appellant.