Miller v. Highland Ditch Co.

McFarland, J. Plaintiff was the owner of a tract of land situated about one mile southerly from the San Bernardino range of mountains. . Part of the tract was-in a high state of cultivation. Coming out of said mountains, and trending towards plaintiff's land, but not reaching it, is a canon called Baldridge Cañón. The natural waters of said cañón would not flow upon plaintiff’s land, but, as found by the court, “would spread out on the lower lands without cutting any particular, channel, the tendency of the flow being to spread out over the said lower lands north of plaintiff’s premises and become absorbed in the soil. But the defend[431]ants, by means of three different ditches, turned foreign water into said cañón, and the commingling water from said ditches passed through said cañón, and by cutting new channels, etc., flowed out and over plaintiff's land, covering part of it with sand and débris, and thus doing him damage. All of the ditches, however, were not Downed jointly by all of the defendants. Each ditch was JprjVned and operated by part only of the defendants, who no interest in the other ditches, and there was no concert of action — that is, no common design — between the owners of one ditch and the owners of the '>Gtl}br ditches.- The action was brought to enjoin all the defe'afthmts from continuing the wrong, and also to re-h’tfver ullages jointly against all the defendants for the injury alrgkdy^one. The court gave judgment decreeing an injunction, and also adjudging damages against all the-Mefgndants jointlyfor $972.33. Defendants appeal from the judgmen^, and from an order denying a 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 defendants which caused the damage.

It 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 independently of the others, and there was no concert or unity of design between them. It is held that in such a case the tort of each defendant was several when committed, and that it does not become joint because afterwards its consequences united with the consequences of several other torts committed by other persons. If it were otherwise, say the authorities, one defendant, however little he might have contributed to the injury, would be liable for all the damage caused by the wrongful acts of all the other defendants, and he would have no remedy against the latter, because no contribution can be enforced between tort-feasors. (Chipman v. Palmer,