The record-union., 1891-01-13


turned foreign water into said canyon, and
the co-ningling water from said bitches passed
through said canyon, and by cutting new
channels, etc, flowed out and over plaintiff !;
land, covering part of it with sand and debris,
and thus doing him damage. All OF the
citchcs however, were not owned jointly by
all Of the defendants. Each ditch was owned
and operated by part only of the defendants
who had 10 interest in the other bitches; and
there was no concert OF action-tilat is, no
common desig1i-between the owners Of one
ditch and the owners of the other bitches
The action was brought to eiijoin all the de-
fendants from continuing the wrong, and,
also 10 recover damages jointly against all the
defendants for the injury already done. The
court gave Judgment decreeng an Injunction
and also adjudging damages againstali the de
PENDANTS, jointly, for S372 33. Defendants
appeal from the Judgment and from an order
denying u new trial; and the only point they
make is that the joint judgment for damages
Is erroneous, because there was no concurrent
or joint act or negligence on the part OF de-
PENDANTS which caused the damage
1t is clear that the rule as established by the
general authorities is that an action at law for
damages cannot be maintained against several
defendants jointly when each acted independ-
emily of the others, ana there was no concert,
or unity of design, between them. 1t is held
that in such IL case the tort OF each defendant
was several when committed; and that it does
not become joint because afterwards its COLI
sequences united with thc consequences of
several other torts committed by other per-
sons. II il were otherwise, say the authorities
one defendant, however little lie might have
y,
all the damage caused by the wrongful acts of
all the other defendants; and he would have
no remedy against the latter, because no con-
tributiom can be enforced between tort-fcasors
(Chipman vs.. Palmer, II N. Y. 81 Little
SchuyliSia Nav. Co. VS.. Richards, Adr, 81
Penn. st. 1S2; Sellick VS.. Hall, az Conn. 260;
edies, Sections 307, ,3oS.j The case OF Blaisdell
VS.. Stephens ct al. "a New. 1 y is very similar
to the case ut bar, and involved the very point
under discussion In that case several defend
ftOwino 81 To
water from their lands to the injury of plain
tifl7s ditch, and for an Injunction to restrain
such wrongful flowing of waste water" 1t ap-
peared, however, that the defendants Gown,
occupy ana irligate separate and distinct.
tracts or parcels OF land each in his own risbt;
and they moved tor Il nonsuit upon the
ground that it did not appear that the injury
complained of was the result of the Joint or
concurrent act of defendants" The trial
court overruled the motion, and. on appeal
the Supreme Court of Nevada held that the
nonsuit should have been granted, and said
in its opinion: ''rne general principle is well
settled that where two or more parties act
each for himself, in producing q result injuri-
ous to plaintiff, they cannot be held Jointly
liable for the acts OF each other" On rehear.
ing, however, it was held that the iniunctic n
against defendants was proper; but the jnce-
inent, so far as 1t awarded damages. was re-
VerSed.
The principal has not been changed in this
State, other by statute or judicial Cecision
The latest authority on the point here is Tenn
pie vs.. Gold Run ID. and Nj Co. (66 CAL ] SS3l
equitable remedy of injunction, to restrain the
commission of acts similar to those COM
planned of in the case at bar; and the appellant
sought to invoke, as against the njunctioi,
the principal above stated as applicable to .,t-
tions at law for damages. This court .lcld
however, that the rule did not apply to the
equitable remedy; but it expressly stated that
it would apply to an action for damages
Counsel for appellant, in support of their po-
sition, had cited IL number of cases. and in al
luding to them this court said rs follows:
Zach n Ntrnc dad,
principle that where several persons acting
independently of each other, engage in the
commission of wrongful acts, the torts are dis
tinct aud not joint; and each is only seyernlIy
liable for the injury caused by his own acts
and not for the torts OF others with whom nc
was not acting in concert. There can bs, no
doubt of the correctness of that principl and
of its applicability to an action at law or the
recovery of damages for the violation, of n
private right" II may be contended .nat the
earlier case of Hillman VS.. Newil .Cton * :
Cal. 56) established ~ different doctIite: bur il
FAUST bc remembered that the main purposs of
that action was to procure and maintain an in
Junction. The Judgment awarded ouly nomi-
nal damages-S1. Before that time there baa
been some doubt whether several wronpdoers
acting independently, could be Joined in an
equitable proceeding to procure an Injunction
against all; and, indeed, it had been once held
in this State (i<eys vs.. Little York G. and W
Co, 53 Cal. 724) that 1t could not be done
The language of the Court in Hillman US
Newington must, therefore, DC considered ns
referring especially 10 the right of equitabie
remedy. There was practically no question of
damages before the court; and no question
was raised to the distinction between the
equitable and the legal remedy. The case is
referred to in the opinion of the Court in the
later case OF the People VS.. The Gold Run Co
above mentioned, where Hillnan vs. Ncwinp-
ton is evidently considered as settling only the
equitable remedy. (And, OF course the dis
tinction is very plain between holding one DE-
fendant liable for the past WRONGS OF all the
others, and simply enjoining all from com
mitting wrong in the futurea We think
therefore, that under the law as clearly settled
the Joint judgment against the def ndants for
damages is erroneous.
We have considered this case Somevbot az
length, because it Is contended that the r,,Ie
as above stated Will in some instances yorl, a
hardship 10 owners OF property injured by the
Joint consequences OF acts OF several persons
not acting in concert No doubt there NAV he
cases where IL would be difficult to make suffi-
cient proof against one of such persons If
sued separately. But 1t cannot be made cieor
that the opposite rule would work less wrong.
At all events, we must declare the law MS we
md 1t. II the law We're changed so that in n
case like the one at bar several Judgment
could be given against each defendant. Tor the
proportionate part of the joint damage which
his individual acts had caused, il may be that
such change would be in ftirtherance OF i,lstice
But the suggestion of such change could he
properly made only to the law making power
The Judgment appealed from, so far as If
awards damages against defendants is re
versed, and in all other respects the iudpr,ent
is affirmed. Let appellant recover the cs,sts of
this appeal.
Order, overruling motion for new trial
ainrnieu. MCFARLAND, j.
We concur:
THORNTON, J.