Yazoo & M. V. R. Co. v. McConnell

90 So. 321 | Miss. | 1921

Sykes, J.,

delivered the opinion of the court.

The appellees by their original bill separately seek to recover damages from the appellant (defendant in the court below). They also seek to abate as a nuisance some levees erected by appellant and to have it close certain culverts maintained by'it. As an exhibit to the bill is a map showing the location of the lands of the complainants, the railroad track, the levees and culverts erected and maintained by the defendant. The material allegations of the bill are: That the complainants are landowners adjacent to, and some of them owning land on both sides of, the railroad light of way. The land of each complainant is described in the bill. ' The railroad at this point runs in a southwesterly direction either through or adjacent to these lands. That at tbe time of the erection of the railroad the natural drainage of the lands was in a southwesterly direction. That when the railroad was built this surface water on either side of the track was collected and carried off in barrow pits dug by the defendant; these pits extending in the same direction as the natural drainage of the land, namely, in a southwesterly direction. That during the year 1916 the defendant negligently erected levees or dumps across these barrow pits, and thereby stopped the flow of the surface water and caused it to pond upon the lands of the complainants for an unreasonable length of time, thereby rendering them unfit for cultivation, worthless, and causing irreparable damage. These damages are specifically set out in the bill.

It is also alleged that before the erection of these levees the lands were fertile and productive; that this condition can only be relieved by the defendant removing these levees and closing the culverts shown on Exhibit A, which is the map above referred to. The bill prays that each complainant be given a decree for the amount of his damages and that the defendant railroad company be required to remove the levees and culverts, or to dig proper ditches affording adequate drainage as it existed before the erection and maintenance of the levees and culverts.

The defendant filed a general and also a special demurrer to the bill, each of which alleges that the bill is multifarious, and that-it shows a separate and distinct controversy between each of the complainants and the defendant, depending upon a different state of facts; that each complainant is complaining about a separate levee erected upon the property line of that complainant, which is wholly separate and distinct from the claim of any other complainant. The special demurrer is addressed to that part of the bill which prays for removal of the levees and asks for the digging of ditches.

The court held that the bill was multifarious, sustained the demurrer, allowed each complainant to file a separate bill, and granted an- appeal to settle tbe principles of the cause. Both sides appeal.

It is the contention of the defendant railroad company that the allegations of the bill show that each complainant, the owner of a separate tract of land, is attempting to recover damages because of a levee erected by the defendant upon the land of this complainant, or that each complainant is suing for a separate and distinct damage due to a separate and distinct cause.

It is the contention of the appellees (complainants) that by their bill they are asking for equitable relief, namely, for the abatement of a continuous nuisance, which nuisance consists of the maintenance of a system of levees and culverts which obstructs and interferes with the natural surface drainage of their lands; that all of these complainants, both jointly and separately, allege that each and every one of these levees interferes with this drainage, and that each and every one of them will have to be removed before the nuisance is abated.

After a most careful consideration of the bill and the map made an exhibit thereto, we are satisfied that the contention of the appellees is correct. The map shows that on both sides of the railroad the appellant has built a number of separate levees perpendicular to the railroad. How far apart these levees are the bill does not allege. Several of these levees are on the separate lands of several of the complainants, and some of the levees are on the dividing line between lands of complainants. The gravamen of the bill, however, is that the erection and maintenance of each and very one of these levees interferes with the natural drainage of the lands of each and every one of the complainants. The equitable relief sought by the bill is the abatement of this nuisance. It is not a suit solely for damages for the injury, but one asking for equitable relief, viz. the abatement of a nuisance common to each complainant. The maintaining of this bill comes squarely within the rule announced in Tribette v. Railroad Co., 70 Miss. 182, 12 So. 32, 19 L. R. A. 660, 35 Am. St. Rep. 642, the leading case in this country upon the subject. This rule there laid down on page 188 of 70 Miss., on page 32 of 12 So. (19 L. R. A. 660, 35 Am. St. Rep. 642), is as follows: “There must be some recognized ground of equitable interference, or some community of interest in the subject-matter of controversy, or a common right or title involved, to warrant the joinder of all in one suit; or there must be some common purpose in pursuit of a common adversary, where each may resort to equity, in order to be joined in one suit; and it is not enough that there ‘is a community of interest merely in the question of law or of fact involved.’ ”

For a while the court departed from this salutary rule, but returned to it in the very able opinion in the case of Telephone Co. v. Williamson, 101 Miss. 1, 57 So. 559. In this case the court discusses the ruling of this court and others and returns to the doctrine enunciated in the Trib-ette Case. We can add nothing to the learned opinions in these two cases. In the Williamson Case the court quotes with approval the following from Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 4 So. 298, 7 Am. St. Rep. 671: “Where trespass to property is the single act, and is temporary in its nature and effects, so that the legal remedy of an action of law for damages is adequate, equity will not interfere. But if the trespass is continuous in its ■ nature, and repeated acts of trespass are done or threatened, although each of such acts taken by itself may not be destructive or inflict irreparable injury, and the legal remedy therefor be adequate for each single act, if it stood alone, the entire wrong may be prevented or stopped by injunction.”

To the same effect is Roberts v. Burwell, 117 Miss. 469, 78 So. 357.

Since the chancery court has jurisdiction in this case, it will, of course, be proper to grant full and complete relief to each complainant.

The lower court erred in holding that the bill is multifarious and ordering each ■ complainant to file a separate bill. Both demurrers should have been overruled. The cause is affirmed on direct appeal and reversed on cross-appeal and remanded.

Affirmed on direct appeal, reversed on cross-appeal, and remanded.