Hillman v. Newington

Sharpstein, J.: The respondent Hillman brought an action against eight defendants, the appellants herein, and alleged that he was entitled, by virtue of a prior appropriation, to 1,600 inches of the water flowing in á stream known as Willow Creek, and that the appellants diverted the waters of said creek from the natural channel thereof, so as to prevent them from flowing into the plaintiff’s ditches, and thereby deprived him of the water to which he was entitled. He further alleged, that the defendants threatened, and intended unless restrained by an order of the Court, to continue said diversion and deprivation, and prayed that they be enjoined from so doing. There are other allegations of damages, and a demand of judgment therefor. Most of the material allegations of the complaint are specifically denied by the defendants. They first “ deny that they have any joint interest in the subject-matter of this action, or that they have jointly done any act or thing mentioned in the complaint; or that they are jointly liable to the plaintiff in any matter or thing connected with or growing out of the subject-matter of the action, either of the matters or things mentioned or set out [63] in the complaint, or of the matters hereafter mentioned and set out in this answer. “ And the defendants aver, that their rights and interests in all matters connected with the subject-matter of this action are separate and independent of each other, and that for these reasons they are improperly joined as defendants in this action.” Afterwards they allege, that each of the defendants is the owner and in the actual possession of a separate and distinct tract of land; and that each of them has, without any connection with any other, diverted a distinct and separate part of the water of said creek for his individual use. In other words, that they have acted severally, and not jointly, in the premises. The Court found, that the right of the plaintiff to 400 inches of the waters of said creek, measured under a four-inch pressure, were prior and paramount to the rights of the defendants, or any of them, in said waters; and that the defendants had severally, and not in concert, diverted said waters to such an extent that said 400 inches “ did not pass down to the heads of plaintiff’s ditches.” The judgment of the Court is, that the defendants be perpetually enjoined from “ diverting said waters, or any part of them, from their natural channel, during the months of April, May, and June of each year, to such an extent as that 400 inches of water, measured under a four-inch pressure, shall not pass, down the channel of Willow Creek below the head of the defendant Newington’s ditch and to the head of the plaintiff’s upper ditch and that the plaintiff recover of the defendants $1 damages, and the costs of suit, taxed at $787.91; and that as between the defendants the costs and damages should be apportioned. From that judgment, the defendants appeal. The point most strongly pressed upon our attention by appellant’s counsel is, that there is a misjoinder of parties defendant, because they did not act jointly or in concert in diverting the plaintiff’s water. It does appear, however, that the plaintiff is entitled to a certain quantity of water, of which he is deprived by the defendants. None of them have a right to use any of the water of Willow Creek, unless there is more than 400 inches flowing in it. If there be more than that amount flowing in it at any time, the plaintiff has no interest in the surplus. What the respective rights of the defendants may be in it, in no way concerns him. [64] It is not at all improbable that no one of the defendants deprives the plaintiff of the amount to which he is entitled. If not, upon what ground could he maintain an action against any one of them ? If he were entitled to all the water of the creek, then every person who diverted any of it would be liable to him in an action. But he is only entitled to a certain specific amount of it, and if it is only by the joint action of the defendants that he is deprived of that amount, it seems to us, that the wrong is committed by them jointly, because no one of them alone is guilty of any wrong. Each of them diverts some of the water. And the aggregate reduces the volume below the amount to which the plaintiff is entitled, although the amount diverted by any one would not. It is quite evident, therefore, that without unity or concert of action, no wrong could be committed; and we think that in such a case, all who act must be held to act jointly. If there be a surplus, the defendants can settle the priority of right to it among themselves. That can in no way affect the plaintiff’s right to the amount to which he is entitled. It does not seem to us that the defendant’s answer, that each one of them is acting independently of every other one, shows that the wrong complained of is not the result of their joint action; and if it does not, the answer in that respect is insufficient to constitute a defense. The case, so far as we are advised, is mi generis. No parallel case is cited by either side. The objection that the judgment does not apportion the payment of the damages and costs equally between the defendants, can be obviated by a modification of the judgment in that respect. And it is ordered that it be so modified ; and with that modification, it is affirmed. Morrison, C. J., Myrick, J., Ross, J., and Thornton, J., concurred. McKinstry, J., concurring specially: I concur in the judgment.