#### Mumford and another *against*Fitzhugh and others.

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. Declaration five defendants, for turning the water of a ri-overflow the andoneofthem ¡^"courtTÍn i-e^The'deeiarl-WbutheIit toen good after verdict,

THIS was an action on the case, for erecting a dam on the *Genesee*river, turning the natural course of the stream, &tc., and thereby overflowing the plaintiff’s land. The plaintiff declared against *Elisha Johnson, Orson Seymour, Nathaniel Rochester, William Filzhngh,*and *Charles Carroll,*defendants, the said *E. J., O. S., N. R.*and *W. F.,*being in custody, &c. and the said *Charles Carroll*being returned ¶ > i ** r\ • o*. , by the sheriff or Ontario, &c. on the *capias ad*responden-*dum, not found,*&c. In the first count, the plaintiffs declared for the injury done to their land, fences, &c. by the overflowing of the water ; and, also, by reason of the said flooding and overflowing of the said waters of the said river, &c. a certain public road or highway theretofore running by, and adjoining to the said land of the said plaintiffs, and by which the said plaintiffs had theretofore been accustomed to have access, ingress, and regress, to and from the said land, was rendered wholly useless and impassable.’’

Two of the defendants, *W. Fitzhugh,*and *N. Rochester,*demurred to the declaration, and assigned as causes of demurrer, 1. That Carroll, one of the defendants against whom *458the plaintiffs had declared, had not been brought into Court; That the declaration was, in other respects, uncertain, informal, and insufficient, &c.

Cady, in support of the demurrer, contended, 1. That the plaintiff could not declare against the five defendants, unless all of them were brought into Court. *(Rose*v. *Oliver and others,*2 *Johns. Rep.*365.)

2. The plaintiff, in addition to the damages claimed for the injury done to his land, cannot claim damages for a public nuisance, by the obstruction of a highway. (.1 *Salk.*112. 115. Co. *Lilt.*56. *a.*1 *Esp, N. P. Cases,*148.) The proper remedy for obstructing a public highway, is by indictment.

*Collier,*contra.

The plaintiff states, in his declaration, that four only of the defendants were taken. The Court say, in *Rose*v. *Oliver and*others, that it was like declaring •against *A. B.*& *Co. simul cum D.*In *tort,*the plaintiff may declare against all, or any of the parties; and the rule applies to actions *quasi ex delicto,*as *case.*(1 *Chilty PI.*75.)

*As to*the second objection, the demurrer is to the whole declaration, and the second count is free from all objection. There is enough, independent of the nuisance alleged, to entitle the plaintiff to recover.

SrENCER, Ch. J.

delivered the opinion of the court. The demurrer is to the whole declaration, and if either count be good, the demurrer cannot be sustained. The objection that the plaintiffs sue for a public nuisance, in the obstruction of a highway, is not applicable to the second count*, for it does not allege any obstruction of the highway.

On the second ground, however, the demurrer is well taken, for *Carroll*is made a defendant, although he has not 'been brought into court. This would be cured after verdict, as was decided in *Rose*v. *Oliver and others*; (2 *Johns. Rep. 367*) but the objection is fatal on special demurrer. The case of *Henly*v. *Broad,*(1 *Leon.*41.) is in point, and *459it is not overruled by the cases in 1 *Salk.*32. and 6 *Term Rep.*766.

Judgment for the defendants, with leave to the plaintiffs to amend, on payment of costs.