THE DEBRIS CASE.
25
party obtaining it no right in addition to those secured In his notarial act; and need assign no reasons." See Hennen, Dig. 651, No.5.
In general practice in this state it is well understood to have so little of "the force of the thing adjudged" that on very slight occasion the whole proceeding is turned into the action via ordinaria. Praying for citation, praying for a personal judgment, taking testimony, and praying for a judgment in answer to an injunction, or on a rule to dissolve, have each been held to avoid thefiat and change the proceeding into an ordinary suit. The order of seizure and sale is rendered upon a title importing a confession of judgment, but it by no means has the force of a judgment by confession. In fact, prior to the constitution of 1868, under statutes of 1861 and 1862, in the major part of the state this order could be granted by the clerks of the court. See Fuqua, Code Prac. 323. · In the case of Stanton v. Emlrrey, supra, it was deoided by a full bench, upon authority, (1) that where 8, defendant appeared and pleaded in abatement the pendency of a prior suit in a state court, and, upon his plea being successfully demurred to, upon leave he answered to the merits, he waived his objections to the jurisdiction; (2) that the pendency of a prior suit in a state court is no bar to an action in another jurisdiction, even though the two suits are f('r the same cause of action, and between the same parties. Either one of these propositions defeats the demurrer in this case, for the two cases are parallel in pleading and circumstances. On the whole case I am well satisfied that the demurrer should be overruled, the court retaining the case. Since, as shown by the supplemental bill, the property is no longer actually or constructively in custodia legis, we can proceed to a decree unless the rights of the parties shall be first adjudicated in some other court. An order overruling the demurrer will be entered, with costs.
THE DEBRIS WOODRUFF 11. NORTH BLOOMFIELD GRAVEL M.INING
Co. and others.
(Oflocuit Court, D. California. 1. Mm,TIFARIOUSNESs-NulSANCE.
April 9,1883.)
!:leversl parties owning extensive mines at various points 9n the affluents of the Yuba river work them independently of each other by the hydraulic process, discharging their waste earth and other debris into the stream, whence it dow, down into the main river, where the debris be(:omes mingled into one indistin-
26
FEDERAL REPORTER. gUishable passes on, and is deposited' along the course of the river in the valley below, burying valuable lands and creating a public and private nuisance. A,bill in equity by a party injured against all the parties thus contributing to' the nuisan'ce to enjoin it is not demurrable as being multifarious, or for & misjoinder of parties defendant.
2.
The parties thus creating the nuisance may be joined in equity, both on the ground that they co-operate in faqt, and actually contribute to the nuisance, the injury being the single result of the action of the debris combined, and operating t<)gether long before it reaches the place where the injury is effectcd; also, on itheground of avoiding a multiplicity of suits.
3.
IN CoMMON.
One tenant in· common of land, .injured by a public and private nuisance, may sue to enjoin the nuisance without making his co-tenant a palty, either as complainant or defendant.
In Equity. Cadwallader, T. S. Belcher, and J. Norton Pomero.v, for com· plainants. W.T. Wallace, S. M. Wilson, J. K. Byme, and W. C. Belcher, for defendants. SAWYER, J. This is a bill brought against a. number of hydraulic 'mining companies, severally owning mines at various points on the Yuba river and its tributaries, and working them independently of each other, to restrain them from discharging the gravel, waste earth, and mining debris arising from working their several mines into thestreams. It is alleged, generally, that complamant has been for 24 years, and that he is now, the owner of an undivided half of three several parcels of land, situated on Feather river, and in the city of Marysville, on the Yuba river; that the defendants, severally, own large mines situated at various points on the Yuba river and its affiuents, which they are,' respectively, working by the hydraulic process, by means of which the gravel, waste earth, and other debri.s arising therefrom are discharged into the several streams on which the mines are situated; that vast quantities of this debris are carried by the rapid cnrrents of the waters down the various streams into the Yuba river, where they commingle before reaching the valley, and after thus uniting flow along the main Yuba through the valley past Marysville into l!'eather river, thence to the Sacramento, making large derosits along the courses of these rivers, which have buried from two to fifty feet deep, and utterly destroyed, 40,000 acres of the most valuable lands, heretofore cultivated, and made it necessary to the citizens, including the complainant, to construct levees of great extent to pre-
THB DEBRIS O.1SB·
27
.,ent the remaining lands, bordering on the streams mentioned, from being in like manner covered up and destroyed; that the deposits within the levees have aIready raised the level of the beds of the streams many-in some cases 50-feet; and that the constant raising of the level of the beds of the streams, and the lands already buried in the debri8, renders it necessary to ,constantly increase the height of the levees at great expense to the people and the complainant; that the navigation of the Feather river has been greatly obstructed by, these deposits, to the great inconvenience of commerce and navigation, and damage to the complainant and the public; that these deposits constitute a great public and private nuisance, which nuisance is rapidly increasing and becoming more intolerable; that th.ese operations of defendants are still continued, and will be continued; and that the destruction of property of complainant and others will take place, and irreparable injury result, unless the defendants are restrained by injunction. Defendants demur to the bill; and the two points relied on are misjoinder of defendants, and multifariousness in this: (1) That each defendant is pursuing its business, severally, without any connection with the other, and without any joint intent or joint action; that the cause of action is distinct and several, as against each, and neither the defendants nor the several causes of action can be joined in the same suit. (2) That the co-tenant of the complainant is a necessary, and indispensable, party to the suit; and that the suit cannot be maintained without making him a party either as plaintiff or defendant. After a very careful examination and analysis of the numerous au'thorities cited on the first point, I am entirely satisfied that under the principles of equity jurisprudence, as established in England and the United States, adopting that system, there is no misjoinder of defendants; and that the bill is not multifarious in the particulars suggested. It is true that each defendant is, independently, working its own mines without any conspiracy or preconcert of understanding or action with the others; but they all pour their mining debris into the several streams, which they know must, by the force of the eurrents, be carried down into the main river, where they must commingle into one indistinguishable mass long before they reach the point where the nuisances complained of are committed and the damages .are created. This commingling of the debri8 discharged into the various streams by the several defendants, and passing on to work the destruction alleged,-this aggregation of waste material, which, after aggregation, is precipitated upon the plains below, and creates
....
28
FEDERAL REPORTER.
the nuisance,-is the necessary and natural consequence of the action of the several defendants; and they must, respectively, be presumed to know and to contemplate these natural and known physically-necessary results. The nuisance is created by the joint action of the debris from the various mines, which is combined, and afterwards flows on together long before it reaches the lands injured and threatened, and after such combination creates the nuisance complained of. There is, therefore, a co-operation in fact, if not in intent, of these several defendants in the production of the nuisance. The injury is the joint effect of acts originally several, but combined before the debris is precipitated upon the lands below and the injury is effected, and in contemplation of equity it constitutes a single cause of action. There is a common interest in the right claimed to discharge debris into the streams. The defendants each and all claim a. common, though not a joint, right. The final injury is a single one,-a single result of the combined operation of this debris,-and all the defendants co-operate in fact in producing it. No damages are sought. Only equitable relief is demand':ld by restraining future action-a future contribution by each to the lluisance. In Thorpe v. Brnmfitt, L. R. 8 eh. App. 656, a bill was supported against several parties acting individually and severally, in blocking up the passage to an inn by loading and unloading wagons in it, in the prosecution of their several callings. Lord Justice .JAMES said: ,. Then it was said that the plaintiff alleges an obstruction, causel! by severall'ersons acting independently of each other; and does not show what share each had in causing it. It is probably impossible for a person in the plaintiff's position to show this. Nor do I think it necessary that he should show it. The amollnt of obstruction caused by anyone of them .might not, if it stood alone, be sufficient to give any ground of complaint, though the amount caused by them all may be a serious injury. Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable ineonvenicnce, but if a hundred do so, that may cause It serious inconvenience, which a person entitled to use the way has a 1'irlht to prevent .. and it is no defense to any one person, among the hundred, to say that what he does causes no damage to the complainant."
A decree granting a perpetual injunction in the case was affirmed. In my judgment the present case is a much stronger one for susktining the bill. The nuisance in that case was not so clearly a joint single effect of the acts of defendants co-operating together a,s that in this In that case what each one did continued distinct ar,d separata, and could be readily ascertained, though the share of the damages might be indefinite. In this the deposits are commingled and
THE DEBRIS OASE.
29
indistingUishable, before the nuisance is committed, and the action effecting the nuisance is joint. Chipman v. Palmer, 77 N. Y. 56, expressly recognizes the rule that "an equitable action will lie to restrain parties who ,fjve1'aUy contribute to a nuisance, while it holds tha.t they cannot be joined i;n an action at law." So does Crossley v. Lightowler, L. R. 3 Eq. 279, and Duke of Buccleugh v. Cowan, 50t. of Sess. Cas. (3d Series,) 214. See White v. Jameson, L. R. 18 Eq. 303. Keyes v. Little York, G. W. d: W. Co. 53 Cal. 724, it must be admitted, decides the exact question now under consideration in favor of the defendants; and I cannot overlook that case. With all proper deference to the court rendering the decision, I am compelled to say that I think the importance of the distinction between proceedings at law and in equity with reference to the question involved, and the facility with which a court of equity can adjust its decrees so as to meet every requirement of justice, either did not attract due attention, or was not duly appreciated. There is a very great difference between seeking to recover damages at law for an injury already inflicted by several parties, acting independently of each other, and restraining parties from committing a nuisance, or from contributing to create, or increase a nuif"ance in the future. In equity the court is not tied down to one particular form of judgment. It can adapt its decrees to the circumstances in each case, and give the proper relief as against each party, without reference to the action of others, and without injury to either. Each is dealt with with respect only to 'his own acts, either as affected or unaffected by the acts of the other!:i. It is not necessary, for the purpose of prevention of future injury, to ascertain what particdlar share of the damages each defendant has inflicted in the past, or is about to inflict in the future. It is enough to know that he has contributed, and is continuing to contribute, to a nuist:.nce, without ascertaining to what extent, and to restrain him from contributing at all. But if otherwise, I do not perceive why the proportion of the injury inflicted by each may not be ascertained when practicable, and the decree adapted to give a proper remedy as to each. The greater elasticity in the forms and modes of proceedings in equity enables the court to so mold its decrees as to meet the special circumstances of each defendant,and thus do entire justice to many parties, under circumstances wherein a judgment at law would be wholly inadequate-circumstances which would render it impracticable to unite them in one action in that form of proceeding. And this is the foundation of the well-established
80
distinction between law and equity with reference to the joinder and non-joinder of parties in the same proceeding. .The very object of establishing courts of equity was to furnish a tribunal adapted to do complete justice in complex cases, often involving many parties, in which the courts of law, by reason of their restricted powers result· ing from their modes of proceeding, could not afford adequate relief. No inconvenience or additional costs can result to the several defend· ants in this suit from being joined with others, who also contribute to the same nuisance by originally independent action-action in its inception and first stages several, but ultimately, co-operating to produce the nuisance. On the contrary, it is convenient to dispose of it in one case, and the costs are diminished to each individual rather than increased by a single suit. The costs can be apportioned in equity, if proper, and the administration of justice is thus facilitated. In fact it is the only adequate mode of proceeding in cases like this. In my judgment, the decision in Keyes' Case is not in accordanc.e with the principles of equity jurisprudence in England, or generally, in the United States, as established by the authorities. I also regard +'he case as substantially overruled by the present supreme court in the subsequent case of Hillman v. Newington, 57 Cal. 56. It is true the Case of Keyes was not mentioned by the court in its opinion in the latter case, but it was the principal case cited and relied on by counsel. The Case of Keyes could not have been overlooked by the court, and does not appearto have been any attempt to distinguish it, and it seems to me to be utterly inconsistent with the decision iJ· Hillman v. Newington, arid to have been in effect 'overruled by the latter case. The difference between these cases is only in circumstance, not in principle. The action in the latter case was for di version of water by several defendants, each acting independently It was both an action at law for damages, by a party entitled to : specific amount of water, and also a suit in equity to restrain the di version complained of. The point most strongly pressed in the supreme court was the alleged misjoinder. The court says: "Each of them (the defendants) 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 anyone would not. It is quite evi· dent, therefore, without unity, or concert of action, no wrong could It' committed; and we think that, in such a case, all who act must be held to act jointly. * * * 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 resped is insutIicient to constitnte a defense."
THE DEBRISOASE.
31
The at law was modified so as to apportion the damages and costs equally among the defendants; and affirmed as to ths injunc. tion. Even the action at laUJ was thus sustained. If in that case "all who act must be held to act jointly," and "the wrongeomplained of is the result of their joint action," I cannot perceive why, for the purpose of equitable jurisdiction, the consequences should not follow in the [{eye. Case and in the case now under. consideration. In this :case the<action of anyone defendant, or anyone of many othet miners alone, might not, and probably would not, produC'e, any appreciable effect at complainant's locality, or occasion the slightest nuisance or injury. In that case is it not "quite" as "evident, there. fore, that, without unity or concert of action,'uo wrong could be com· mitted?" and'is it'not equally a (lase, where "all who act must be held to act jointly?" If not, why not? It devolves U'ponthoBewhG maintain the contrruty to clearly-show why n.ot. So, BlaisdeU v. StephenIJ, 14 Nev. 22, was a. combined suit.at law--'to recover dam.ages which had already resulted from a nuisance..... and in equity to restrain its continuance, The two defendants, Sessions and Stephens, each separately and independently of the other, allowed water to run·from his lands upon the lands of the plaintiffs, the combined action of which :injured plaintiffs' 'ditch, which constituted the nuisance complained of. There was a joint judgment for the damages, and an On appeal,the su· preme court held that, the act of each party being indepeD'dent of the other, there '\VII,S no joint liability at law, and reversel! the judge ment, and ordered a new trial. Upon a petition for rehearing, it was insisted that it was a proper case for equitable relief, even if the judgment at law could not be maintained. And upon a re·examination of the case, the court finally held, in accordance with the authorities, that there could be no joint recovery at law for the damages, but that it was a proper case for an injunction, and remanded the case, with directions that, if the damages should be remitted within 15 days, the decree for an injunction should stand. That case is exactly in point, also, and shows that this case is a proper one for an injunction, although there may not be a right to recover joint damages at law-that there is no misjoinder of parties, and no multifariousness in equity. That case also fully answers the question so confidently propounded by defendants' counsel, whether, had this case been brought in a state conrt,where law and equity are administered in the same case at law for damages, and in equity for an in. junction, and been transferred· to this court and divided into two
suits,according to its practice, this court would have dismissed the action at law for misjoinder of defendants, but have retained the equity branoh, notwithstanding the objection on the ground of misjoinder and multifariousness? This is just what the supreme couri of Nevada did, even without dividing the case into two suits. There are many other authorities, not necessary to mention, tending more or less strongly and directly to the same conclusion. I also think this bill maintainable against all the defendants on the jmisdiotional ground of avoiding a multiplicity of suits. There is a common interest,-a oommon though not joint right olaimed; and the aotion on the part of all the defendants is the same in contributing to the oommon nuisance. The rights of all involve and depend upon identioally the same questions, both of law and fact. It is one of the class of oases, like bills of peaoe and bills founded on analogous prinoiples, where a single individual may bring a suit against numerous defendants, where there is no joint interest or title, but where the questions at issue and the evidence to establish the rights of the parties and the relief demanded are identical. Without analyzing and diseussing the numerous oases upon the subject separately, this case appears to me to be olearly within the principle stated in and established by the following and many other authorities that might be oited. 1 Pom. Eq. §§ 256-269, and notes. In this, and the preceding sections, Professor Pomeroy olearly analyzes and satisfactorily classifies the cases on this subject. Mayor of York v. Pilkington, 1 Atk. 283-4; Sheffield Water-works v. Yeomans, L. R. 8 Ch. 8, 11; Ware v. Horwood, 14 Ves. 28-33; Bd. of Sup'rs v. Deyoe,77 N. Y. 219; Schu.1Jler Fraud Cases, 17 N. Y. 592; Cent. P. R. Co. v. Dyer, 1 Sawy. 650: Gaines v. Chew. 2 How. 642; and Oliver v. Piatt, 3 How. 412. In Gaines v. Chew the supreme court of the United States says: "It is well remarked by Lord COTTENHAM, in Campbell v. Mackay, 7 Sim. 564, and in 1 Mylne & Craig, 603, 'to lay down any rule, applicable universally, or to say what constitutes multifariousness, as an abstract proposition, is, upon the authorities, utterly impossible.' Every case must be gf,J'Demed by its own mrcltmstarwes,' and as these are as diversified as the names of the parties, the court mu,st exercilie a sound discretion on the subject. While parties should not be subject to expense and inconvenience in litigating matters in which they have no interest, multiplicity of suits should bea'Doided by uniting in one bill all who ha'De an interest in the principal matter in controversy. though the interest may have arisen under distinat contracts."
And this is substantially repeated in Oliver v. Piatt, 3 How. 412. Thus it is seen that there is no iron, inelastic rule on the subject of
THE DEnnIS CASE.
33
multifariousness, but "every case must be governed by ItS own cir. exercise a sonnd discretion OIl the cumstances," and the court 8ulrject. Are not all these defendants "interested in the principal matter in controversy?" Nay, in the only matterin controversy? Are not the law and the facts and the evidence to establish the controlling facts, and the relief demanded against each, identical as to all? Then, why, under the injunction of the supreme court, should they not all be united in one bill for the purpose of avoiding a multiplicity of suits? In my judgment, if the bill does not present a case precisely like any other found in the books, it, nevertheless, presents one within the principles laid down, and one that a court of equity, in the exercise of a sound judicial discretion, is required to entertain-one that it can· not rightfully or properly refuse to entertain. It violates none of the limitations suggested in Gainesv. Ghew. It will not subject the different parties to "expense or inconvenience in litigating matters in which they have no interest," but a "multiplicity of suits" is avoided by joining the several defendants, all of whom are interested in the only controversy in the action. The controlling facts are the same; the evi. dence to establish them is identical; the right claimed and the. questions of law are One and the same; the same relief is asked against all; they all contribute to the same nuisance complained of; and there can be no more inconvenience and little more expense in determining all the rights of all the parties in ohe suit than would be required in each suit in determining them in several independent suits. The expense to each individual will be greatly diminished. While to reo quire the complainant to pursue each defendant separately would be to put upon him a burden so impracticable and onerous as to amount to an absolute denial of justice. If each contributor. to the nuisance must be sued separately, then there is no adequate remedy for Buch .an injury. The locality of the nuisance is the common paint, like the point of convergence in an hour-glass, upon which the previously aggregated results of the originally independent acts of the several de. fendants concentrate, and jointly operate, and from which the joint effects again radiate and distribute themselves upon all within the _ reach of their influence. I can perceive no sound reason in the established principles of equity jurisprudence and practice why two or more of the parties in· jured by the common nuisance should not be permitted to unite, and two or more of those co-operating to commit it should not be joined in one Ruit to redress the injury and enjoin 11 or inv.16>no.1-8
84:
.FEDERAL REPORTER,
crease of the nuisance thus in common inflicted and in common sustained. To. my mind this bill, presents a much stronger case for joinder of. all the defendants than Gaines v. Chew, Oliver v. Piatt, Cent. P. R.'Oo. v. Dyer,or,indeed, a large majority, if not all, of the cases to be found in the books establishing the rule invoked. As counsel for complainant well observed, if there is found in the books no precedent precisely like the eaSEl in hand, in all its circumstances, it must be because no case, except that of Keyes,' exactly like it has been presentedto the courts for adjudication, and the time and the occasion ,have nOW come to make one. I think the bill not demurrable on the ground of JI1.isjoinder of defendants or multifariousness. I am. s,atisfiEld also that the complainant is entitled to, maintain the .suit without joining his co-tenant .or making him a defendant. His interest-hisestate..,.-is seyeral. There is but a unity of possession. His interest or estate is capable of being injured, and he is entitled to have it. protected from irreparable injury, whatever course his cotenant may s,ae tit .to pursue. He claims n,othing against his cotenant.. The cO:,tenant is not an indispensable party to a determiof his rights. In this state, both before the Code, under the common-law rules, and after the adoption of the Code, byeHress carrying the former rule into it, it was settled that tenants in common'could sue alone. In Goodenough v. Warren, 5 Sawy. 497, a Buit to quiet title, it wa.s held that one tenant in common, made a defendant, could remove the C'ase from a state court to the circuit court of the United States, on the ground that there was a controversy wholly between him and the plaintiff, which could be fully determined as between them without the presence of other parties. The same ruling was made in Field v. Lownsdale, 1 Deady, 289. In Dent v. Turpin, 2 Johns. & H. 139, and in Southern v. Reynolds, 12 Law Rep. (L. T. R.) 75, it was held that a co-tenant, ill the right to ther use of a trade-mark, might maintain a bill to restrain its use without joining or making his co-tenant a party. In Payne v. Hook, 7 Wall. 431, it was held that one of the heirs of an estate eould maintain a bill against an administrator and his sureties to obtain relief against fraudulent proceedings, for an account, and for her share of the estate, without making the other heirs parties to the bill. The other heirs were named in the bill, but it was not stated of what state they were citizens. The court says: "It can never be indispensable to make defendants of those against whom nothing is alleged, and from whom no relief is asked. A. court of
GREENWALT V. DUNOAN.
35
equity adapts its decrees to the necessities of each case!' Page 432. See, also, Van Bokkeienv. Cook, 5 Sawy, 593-4:. The,pre'Bent case is a stronger one for permitting the co-tenant to sue alone, as there is no account in. which others are interested required. But this point is fully settled by the supreme court of the United States in Mississippi tl Missouri Ii. Co. v. Ward, 2 Biack, 485. steamThe suit was brought by Ward, a tenant in common of boats, to enjoin a nuisance, without making his co-owners parties <Jomplainant or defendants. Says the supreme court in deciding the case: <
<
"Ward was the part owner of these steam-boats, and commander or ODe (}f them, navigating the river in succellsive trips between St, Louis. and St. Paul, and which boats, the complainant alleges, were much injured and delayed by the bridge. which, he avers, is a great obstruction to navigationamounting to a prominent nuisance. It is insisted that Ward cannot sue alone, and could only come before the court jointly with the other part-ownera of the vessels irljured and delayed. He seeks no damages by his bill, but only an abatement of the nuisance, as a preventive remedy against future Injury and delay. .A.. bill in equity to abate a pUblic nuisance filed by one who has sustained damage has succeeded to the former mode in England of an information in chancery, prosecuted in behalf of the crown, to abate or enjoin the nuisance as a preventive remedy. The private party sues rather as a public prosecutor, though on his own account; and unless he shows that he has sustained, and is still sustaining, individual damage he cannot be heard. He seeks redress of a continuing trespass' and wrong 'against himself, and acts in behalf of all others who are or may be injured; nor i8 there more 1iecessitll for joining partners in the proseCution than there is for his joining in the suit any oth81' person aa complainant who haa 8UStained injury. Gibbons, Dilapidation, 402."
This decision exactly covers the point under consideration, and is authoritative. None of the points of the demurrer relied on a.re tenable. The demurrer to the bill must, therefore, be overruled, and it is so otderedt with leave to answer on or before the next rule-day of this court.
GREENWALT
v.
DUNOAN
and others,-
"
(Oircuit Oourt, E. D. Mis8IJuri. March 22, 1883.) 1. Eq,UITY-JURISDICTION IN SUITS TO REMOVE CLOUDS UPON TITLES.
A suit to remove a cloud upon a title cannot be maintained in a court of equity, where the plaintiff has a full, complete, and adequate remedy at .Jaw. *Reported by B. F. Re". Esq.· of the St. LouIs bar.