92 N.Y.S. 725 | N.Y. Sup. Ct. | 1904
The plaintiff brings this action against the defendants, twenty-six mill owners on the Cuyadutta creek above him, alleging that each upon his own premises, for the last six years, has been discharging sewage and other foul matters into the creek; that while the damage committed by each defendant in itself is merely nominal, that the stench arising from the creek thus polluted by all of them greatly injures the enjoyment and healthfulness of his premises, and he asks an injunction and $1,000 damages. Various of the defendants demur upon the ground that the complaint does not state facts sufficient to constitute a cause
It is clear that an action at law cannot be maintained against the defendants jointly, for the reason that each is only liable for the actual wrong and damage done by him, and that in a legal action against all the several damage caused by each cannot be properly adjusted or determined. Chipman v. Palmer, 77 N. Y. 51.
While each defendant, by his separate drainage, commits a private wrong, the fact remains that the only injury to the plaintiff is caused by the noxious smells arising from the “ combined ” sewage of all the defendants. The drain of each defendant is a permanent structure, having existed for years; the drains are all within a few miles of each other, and it is fair to assume that each defendant knows that the others are draining into the creek, and knows the general condition of the stream before and after it receives its drainage, and appreciates the noxious odor emitted from the creek thus fouled. Each defendant, therefore, knows that his continuous drainage, and the continuous drainage of each of the other defendants, at the same time and in the same manner, causes a “ combined ” stench which destroys the usefulness of the plaintiff’s property. Still each persists in contributing his part to the general stench. We may, therefore, fairly assume that each of the defendants is acting under his supposed right as a riparian proprietor to discharge from his mill into the stream. This is the more natural view than to consider him as an intentional wrongdoer. Not every discharge by a riparian owner into the stream is unlawful. Nature put the stream through his premises for his use, but he must make a reasonable and proper use of it, and must not materially divert' or pollute it. “ Surrounding circumstances, such as the size and velocitv of the stream, the usage of the country, the extent of the injury, convenience in doing business and the indispensable public necessity of cities and villages for drainage, are also taken into consideration, so
The action, therefore, is substantially based upon the use of the stream by each defendant-, which in connection with a similar use by all the other defendants, is unreasonable and unlawful and damnifies the plaintiff. We may well see that if but one of the defendants was discharging into the stream, the use might not be unreasonable as to the plaintiff. At least injuring no one, no liability would arise, as the l^w does not care for small things. It is at least evident that such a use by a single party would not cause any material change to the plaintiff by way of noxious smell, which is his only complaint here. This case, therefore, comes well within Meyer v. Phillips, 97 N. Y. 485, where the defendants each carried on a separate business in running his logs down the stream, and were enjoined in a single action, the court holding they were properly united. “ They claimed a common right hostile to the plaintiff. They asserted a public right common to many. In such a case all the parties asserting the common right may be united as defendants in an action by one who seeks to overthrow the common claim, and establish his right against all claimants.” The plaintiff here has no adequate remedy by pursuing each defendant individually." An action at law against each defendant to recover the nominal damages for each day’s injury would be ruinous. An equitable action against each, in which it is conceded that the damage inflicted by him is merely nominal, is at least uncertain, for it rests to a great extent in the discretion of the court whether it will grant him relief. Warren v. City of Gloversville, 81 App. Div. 291.
And, in an equitable action against each, the plaintiff must go into the question of the unreasonable use by all of the defendants, for it is possible that the act of one defendant would not so contaminate the stream that the plaintiff could complain of him. If -the defendants had by agreement or concerted action united in fouling this stream, there could
In New York & N. H. R. R. Co. v. Schuyler, 11 N. Y. 592, where fraudulent certificates of stock had been issued at different times to different persons and in different amounts, an equitable action against all was maintained, the court saying (at p. 606) : “In this State, the joinder in one suit of causes of action in some sense distinct from each other, with all the necessary parties for their determination, has always been allowed with great liberality where the convenience and the ends of justice have required it.”
In this case the subject of the action is the injury to plain
In Mahler v. Schmidt, 43 Hun, 512, the court says (at p. 514) : “ This provision of the Code is but declaratory of the rule that previously existed, and the test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause, or one common point of litigation. If so, unconnected parties may be joined, even where different relief is sought against them; but if the action is against different persons concerning things of distinct natures, in which some of the parties have no interest, then the action cannot be joined.”
The only injury to the plaintiff arises from the foulness of the stream at his place. Ho one defendant caused that injury; all of the defendants did cause it. There are but two questions before the court:
(1) Are the several riparian owners, considering the location and the uses of the stream, making an improper use of it by draining into it ?
(2) Does that improper use result in a situation, combined from the acts of all of them, which causes the injury to the plaintiff ?
Ho right of any defendant can suffer by the maintenance of this joint action. The whole controversy can be settled with less expense to each in this manner than in any other way. All of the defendants may be enjoined, and if the question of damages is urged a reference may be had to determine what damage has been caused by each defendant. This power of a court of equity to grant exact justice and proper relief for or against each defendant relieves such an action
Demurrers overruled, with leave to withdraw same within twenty days upon payment of thirty-five dollars costs.