McDermott v. Morris Canal & Banking Co.

The opinion of the court was delivered by Knapp, J. To the declaration filed in this cause, the defendants interpose a general demurrer. The first and second counts in the declaration are in tort, and set forth a cause of action in form and substance essentially the same. They charge that the plaintiffs, being the owners of a mill near to a certain stream in the county of Warren, were entitled to have, and for a long time had a portion of the water from said stream flow through a certain flood-gate or sluice-way, to the plaintiffs’ mill, for running it, and that the defendants unlawfully pulled down a stop-gate placed in the stream for the purpose of turning the water to the mill, and by removing [56] the gate, diverted the water from the mill, and so diminished its flow that the plaintiffs could not run their mill, and were thereby damnified. Counts in a declaration nearly identical with these were approved in the Court of Queen’s Bench, in Beeston v. Weate, 5 Ellis & Black. 986. So far as the first and second counts of the declaration are concerned, there is-no objection; the fault is in joining with them the third-count. The third count substantially charges that defendants-had agreed with plaintiffs’ grantors, their heirs and assigns, that they, the defendants, should keep a dam or stop-gate across their canal, for the purpose of turning the water from the canal, through the gate and sluice-way, to plaintiffs’ mill. And that in pursuance of said agreement, the defendants had constructed a dam and stop-gate, accordingly, and afterwardshad wrongfully pulled down the dam, by means of which the water had been drawn away from plaintiffs’ mill. This count presents a cause of action, to maintain which, a contract of the defendants must be referred to as creating the right, for the violation of which, plaintiffs complain ; in such, cases, the rule is that the action must be on the contract, and not on the tort. Cabell v. Vaughan, 1 Saund. R., 2d ed., 291, note c.; Masters v. Stratton, 7 Hill 101; Wilber v. Brown, 3 Denio 356. In Masters v. Stratton, Chief Justice Nelson, in delivering the opinion of the court, says, the general result of all the decisions is well stated in the note to Cabell v. Vaughan, and is in substance this: “ Where the action is maintainable for the tort merely, without reference to any contract made between the parties, no objection can be raised on the ground that the plaintiff should have declared upon the contract;. but when the action is not maintainable without referring to* a contract between the parties, and laying a previous ground for it by such contract, then the -plaintiff must proceed upon the contract, and a special action on the case will not lie.” Eor this manifest misjoinder of causes of action, there-should be judgment for demurrants.