JAMES H. KEYES v. LITTLE YORK GOLD WASHING AND WATER COMPANY, 53 Cal. 724

By the Court : The complaint sets forth that the plaintiff is the owner of certain described premises known as bottom land, situate in the valley, upon the banks of Bear River, about ten miles from where that stream debouches into the Sacramento Valley, and midway between that point and the mouth of the river ; that the defendants are miners severally engaged in hydraulic mining at points high up on Bear River and its tributaries—the several mining properties of the defendants lying within a radius of seven miles upon the hill-tops adjacent to the river, and being severally wrought and carried on by the respective defendants, and that the several dumps used by the defendants respectively in their mining pursuits are some of them in the bed of the river, others in the beds of steep ravines and gulches immediately contiguous to and leading into the bed of the river and its tributaries; that the tailings of the several mining claims deposited on these dumps are swept down the river by the force of the current until they reach the lands of the plaintiff below, upon which -they are deposited, and which they cover so as to destroy the value of the said lands.

The prayer is that an injunction issue enjoining the defendants from depositing the tailings and debris of their several mining claims so that they reach the channels of the river, etc.

The defendants appeared to the action, and filed a demurrer to the complaint upon several grounds—and, among others, upon the ground that there is a misjoinder of parties defendant, in that it did not appear by the complaint that the defendants jointly committed any of the acts complained of, or are acting therein in concert or by collusion with each other, but that, on the contrary, it did appear by the complaint that the. defendants had no interest in common in the subject-matter of the suit, but were acting severally and without any joinder or co-operation on the part of the defendants, or any of them.

The demurrer was overruled by the Court below, and the propriety of its action in that respect is brought in question by this appeal.

An injunction is granted when the relief sought consists wholly or in part of restraining the commission or continuance of acts being done or threatened, or when the commission or continuance of acts during litigation will produce irreparable injury, or render a judgment in plaintiff’s favor ineffectual. (Code of Civil Procedure, sec. 526.) The injunction ordered at the final hearing by the Court below was not auxiliary to any other provision of the decree, or added to render some other final order more effective.

It was the only decree sought by plaintiff, and is the very most that the allegations of his bill would have entitled him to had the defendants been charged with co-operation and a common design in doing that which each threatened. There are, indeed, recitals in the complaint alleging plaintiff to have already sustained damages, but no relief is sought upon them as allegations constituting the basis for a decree. They arc rather in the nature of statements of evidence tending to sustain the averments that like damages will occur in the future, unless defendants are restrained.

In the case of a demurrer for misjoinder, (even had damages for past injuries been demanded in this case) no judgment for damages could have been rendered against the defendants jointly, because they are charged each to have committed a tort severally; and several judgments for damages could not have been rendered against each defendant, in the same action, for such judgments would have demonstrated a misjoinder. No damages are claimed in the prayer for judgment or in the “points” of counsel.

The wrong complained of is that each of the defendants, acting for himself, and not in collusion or combination with any other, threatens to continue to deposit the tailings from the working of the mine in such position, on or adjacent to his own premises, as that, from natural causes, they will flow down or be forced down upon plaintiff’s farm.

If a nuisance was created by the exposure of the dumps to the action of the waters of Bear Elver and its tributaries, a nuisance was committed by each of defendants, when he—disconnected from the others—made or threatened such deposit; or, if it be said that the matter of the reasonable use of the stream can enter into the inquiry, there could be no nuisance by any of the defendants who had made only a reasonable use. In either view of the case, there is a misjoinder of parties defendant.

The bare statement would seem to prove the proposition, since the very essence of the objection of misjoinder of a defendant with others is that he is not connected with or affected by the single cause of action, if "there is but one, or that he is not connected with or affected by one or more of several separate and distinct causes of action, if several are alleged. If any one of these defendants was liable to be enjoined, he could have been enjoined in a separate suit, the subject-matter of such suit being the alleged threatened wrong.

If any one of the defendants is not liable to be enjoined in a separate suit, he cannot be made liable in an action like the present; for there is no principle of equity which would make a man responsible for a wrong which he has neither done nor threatened, merely by joining him with other defendants who may independently have threatened a similar wrong. Several cases were cited by counsel for respondent which it was claimed would sustain the joinder of the defendants in this action, but an examination will clearly distinguish them from the present. Mayor of York v.

Pilkington, 1 Atk. 282, was a bill of peace to prevent a multiplicity of suits. In a certain sense, all bills of peace are intended to prevent multiplicity of suits, but it is a non sequitur to assert that wherever the result of assumed jurisdiction by a Court of Equity will relieve the plaintiff of the inconvenience of bringing several separate actions at law or suits in equity, the complaint is to be termed a bill of peace. In Mayor v.

Pilkington, a bill was brought to quiet the plaintiffs in a right of fishery in the River Ouse, of which they claimed the sole fishery “ of a large tract ” against the defendants, who, it was suggested by the bill, claimed several rights, either as lords of manors or occupiers of adjacent " lands. The main question was whether, in view of the fact that there was no privity between the defendants, the bill could be maintained. Holding the affirmative on this proposition, the Court of Chancery was.authorized to retain the cause for other purposes.

But the gravamen of the bill was not that the defendants were several and separate trespassers, (the view upon which the demurrer was sustained at the first argument) but was that the plaintiff had an exclusive right against which defendants were asserting adverse rights. " The proceeding was analogous to our action to quiet title. The present case more resembles Dilley v.

Doig, 2 Vesey Jr. 486, in which the propri- i etor of a copyright sought to restrain in the same suit several \ and independent infringements of his right by different persons. ,'i In that case there was no allegation in the bill of a claim of right on the j>art of the defendants to sell copies of the spurious edition of the book, and, from the nature of the circumstances detailed, there could have been no such allegation. The defendants were alleged to be severally wrong-doers without - any combination.

The Lord Chancellor said: “ The right $ against the different booksellers is not joint, but perfectly dis- t tinct; there is no privity.” The subject-matter of the bill was a wrong done by each of the booksellers; its object was not to obtain a final determination that the plaintiff had the exclusive right, and that the defendants had no right, (for it was not asserted that they claimed any) but, as in the present case, sim¡)ly to enjoin wrongs threatened by the defendants severally, ')/ and not jointly. In Whaley v.

Dawson, 2 Schoales & L. 367, a demurrer was sustained, “ for that it appeared by said bill that the same was exhibited against defendants and one Michael Carraher for several and distinct matters and causes, that have no relation or dependencies on each other.” In Brinkerhoff v. Brown, 6 Johns. Ch. 137, Chancellor Kent remarks: “There was a series ' of acts on the part of the persons concerned in the ‘ Genesee Company,’ all produced by the same fraudulent intent, and terminating in the deception and injury of the plaintiff.

The defendants performed different parts in the same drama; but it was still one piece—one entire performance, marked by different scenes.” All the defendants, (except such as were parties necessary to the final determination of the issues between plaintiffs and those who had taken

part in the fraud) had been actors in a greater or less degree in carrying out the common fraudulent design. The case would have been more analogous to the present, if here the several defendants had been charged with threatening the injury in pursuance of a purpose adopted by a common agreement. It is claimed that New York and New Haven R. R. v. Schuyler, 17 N. Y. 603; 34 N. Y. 45, is strongly in point.

But that was a case where the plaintiffs claimed a right to have certain stock cancelled as having been fraudulently issued, and the defendants, as the complaint alleged, “ all claimed rights; * * * all asserted a claim upon the company in some form.” (17 N. Y. 594-5.) The case was determined upon its analogies to a bill to quiet title and remove a cloud.

The learned Judge likened it to a case of an individual clothed with the legal title to the railroad property, receiving its gross earnings for the purpose of dividing the net profits among a large number of individuals whose rights were evidenced by certificates of stock.

In such case, if a new class should come forward claiming the same rights, and presenting instruments of the same kind as the certificates, bearing on their face all the evidences of genuineness, but in fact unauthorized and spurious, it would be the right and duty of the legal owner, (upon settled principles of equity) to call the false claimants into Court, in order to remove the cloud upon the equitable interest of those whom he represented. (Ibid. 598.) It is unnecessary to dwell upon the analogies between the cases of N. Y. and N. H. R. Co. v. Schuyler, and the Mayor of York v.

Pilkington, or on the very marked differences between the former and the case at bar. In the Court of Appeals, 34 N. Y., the complaint was expressly characterized as “ a bill of peace, to quiet titles, settle rights, and prevent a multiplicity of suits.” An examination of Thorpe v. Brumfit, Law R. Ch.

App. cases, vol. 8, shows that the parties all had a contract relation to each other, by reference to which their respective rights were to be determined; and further, that no question of joinder was raised, but, on the contrary, the defendants all answered together, insisting that they all had a certain right of way, to be exercised in a reasonable and proper manner (p. 653). In People v. Morrill, 26 Cal., the objection was that there was a misjoinder of plaintiffs.

It was held, (and apparently admitted) that all the plaintiffs were properly joined, so far as relief by cancellation of the patent was concerned, and it was said that the demurrer should be overruled because too general. We think the distinction between the case at bar and the other American cases cited by the respondent— Gaines v. Chew, 2 How. 619, amongst them—is equally susceptible of explanation.

With respect to the Scotch cases, it is enough to say that, under the system of law which obtains in Scotland, it would appear that parties and causes of action may be united in a manner not permissible in countries where the common law prevails; the inconveniences and evils resulting from the joinder of parties without community of interest being there avoided by a system which allows the “ conjunction ” of causes and the submission of special issues to the triers of fact.

At law, where an action for tort is brought against several co-defendants, it is essential that the wrong complained of be joint. (Dicey on Parties, 449.) This rule is thoroughly understood, and is not disputed. If there are any exceptions in equity they have not been called to our attention. We are convinced that none can be found which will authorize the joinder of defendants attempted in the proceeding before us. We have no doubt that the objections to the complaint above considered could properly be presented by a demurrer on the ground of misjoinder of parties defendant.

Judgment and order reversed and cause remanded, with directions to the Court below to sustain the demurrer to the complaint. Bemittitur forthwith.