Co. v. Lindsey (1883) 3 Ont. Rep. 66, it appeared that the defendants, Shaw and Caston, prepared a claim to certain lands and filed the same with the defendant Lindsey, registrar of the city of Toronto. The registry laws

did not permit the recording of such a document, and the court held that an action would lie to remove the cloud from the title, but as there was an absence of malice, only nominal damages could be recovered. R. G. R.

V.

.

-joint liability.

2. In the case of wholly independent action of tort-feasors, there is no joint liability, nor liability of one of them for entire damages, except in those instances in which the injury results immediately or directly from the coincident and contemporaneous wrongful acts.

[See 26 R. C. L. 763.] - pollution of stream.

3. Two or more persons who, acting separately and independently, have wrongfully cast in a stream coal, cinder, and other materials and polluted and defiled it, in consequence of which the property of a riparian owner has been injured and damaged, are not jointly liable for the damages so wrought, nor is any one of them liable for such damages in their entirety. [See 26 R. C. L. 764.]

Decision overruled.

4. In so far as the decision in Day v. Louisville Coal & Coke Co. 60 W. Va. 27, conflicts with the propositions above stated, it is disapproved and overruled.

failure to show joint lia

bility. 5. Failure of a declaration against several tort-feasors, joined in one acHeadnotes by POFFENBARGER, J.

tion, to show any ground of joint liability, is good cause of demurrer thereto for misjoinder of parties. [See 21 R. C. L. 525.]

insufficiency of declaration

Appeal - reversal.

6. If on such a declaration there has been a verdict and judgment for the plaintiff, the appellate court, on writ of error, will reverse the judgment, set aside the verdict, and remand the case, with leave to the plaintiff to amend his declaration so as to show a joint right of action, if he desires to do so, or to prosecute his action against one of the defendants and dismiss it as to the others.

[See 2 R. C. L. 286.]

Trial-motion to set aside verdict.

7. If, in an action against two or more tort-feasors, the proof shows they acted separately and independently, in the perpetration of the wrongful acts alleged and proved against them, and the injury the plaintiff has suffered from such acts is a merely consequential result of the coincident and contemporaneous torts, and not a direct and immediate one, a motion to set aside a verdict for the plaintiff therein, as being contrary to the law and the evidence, should be sustained.

error:

There was a misjoinder of defendants, who are separate corporations, operating independently of each other and engaged in lawful occupation.

Pulaski Anthracite Coal Co. v. Gibboney Sand Bar Co. 110 Va. 444, 24 L.R.A. (N.S.) 1185, 66 S. E. 73; Mansfield v. Bristor, 76 Ohio St. 270, 10 L.R.A. (N.S.) 806, 118 Am. St. Rep. 852, 81 N. E. 631, 10 Ann. Cas. 767; Miller v. Highland Ditch Co. 87 Cal. 430, 22 Am. St. Rep. 254, 25 Pac. 550; Chicago & N. W. R. Co. v. Hoag, 90 Ill. 339; Babbitt v. Safety Fund Nat. Bank, 169 Mass. 361, 47 N. E. 1018; Sloggy v. Dilworth, 38 Minn. 179, 8 Am. St. Rep. 656, 36 N. W. 451; Martinowsky v. Hannibal, 35 Mo. App. 70; Watson v. Colusa-Parrot Min. & Smelting Co. 31 Mont. 513, 79 Pac. 14; Chipman v. Palmer, 77 N. Y. 52, 33 Am. Rep. 566; Tennessee Coal, I. & R. Co. v. Hamilton, 100 Ala. 252, 46 Am. St. Rep. 48, 14 So. 167; Loughran v. Des Moines, 72 Iowa, 382, 34 N. W. 172; Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523, 7 Mor. Min. Rep. 599; Upson Coal & Min. Co. v. Williams, 75 Ohio St. 644, 80 N. E. 1134; Seely v. Alden, 61 Pa. 306, 100 Am. Dec. 642. The river has become a sewer by prescription.

common

Cleveland v. Standard Bag & Paper Co. 72 Ohio St. 324, 106 Am. St. Rep. 613, 74 N. E. 206, 3 Ann. Cas. 21; Wooldridge v. Coughlin, 46 W. Va. 345, 33 S. E. 233; Eells v. Chesapeake & O. R. Co. 49 W. Va. 65, 87 Am. St. Rep. 787, 38 S. E. 479; Boyd v. Woolwine, 40 W. Va. 282, 21 S. E. 1020; Rogerson v. Shepherd, 33 W. Va. 307, 10 S. E. 632; Lucas v. Smithfield, C. & H. T. Turnp. Co. 36 W. Va. 427, 15 S. E. 182.

Messrs. John M. McGrath and Hugh G. Woods, for defendant in error:

Where the negligence of two or more persons, acting independently, concurrently results in the injury to a third, the latter may maintain his action for the entire loss against any one or all of the negligent parties.

21 Am. & Eng. Enc. Law, 2d ed. 496; 15 Am & Eng. Enc. Law, 557; Whar

ton, Neg. § 144; Shearm. & Redf. Neg. 4th ed. § 122; Cooley, Torts, p. 79; Grand Trunk R. Co. v. Cummings, 106 U. S. 700, 27 L. ed. 266, 1 Sup. Ct. Rep. 493; Slater v. Mersereau, 64 N. Y. 138; Boyd v. Watt, 27 Ohio St. 259; Johnson v. Chapman, 43 W. Va. 639, 28 S. E. 744; Day v. Louisville Coal & Coke Co. 60 W. Va. 27, 10 L.R.A. (N.S.) 167, 53 S. E. 776.

The sewage of the city of Bluefield and the sewage from other cities and towns may have been cast upon Bluestone river for many years prior to the institution of this suit, without any objection on the part of the plaintiff, but that fact does not constitute said river a common sewer by prescription at the point where said river passes through his lands.

Eells v. Chesapeake & O. R. Co. 49 W. Va. 65, 87 Am. St. Rep. 787, 38 S. E. 479; Day v. Louisville Coal & Coke Co. 60 W. Va. 27, 10 L.R.A. (N.S.) 167, 53 S. E. 776.

Private property cannot be taken or damaged, even for public purposes, without just compensation.

Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 665, 22 L. ed. 461.

Poffenbarger, J., delivered the opinion of the court:

The judgment complained of, amounting to $1,650, stands upon a declaration in an action against six different coal mining corporations, whose mines and works are located at different places on tributaries of the Bluestone river, charging them with having polluted and defiled said river, by casting into it directly and indirectly cinder, coal, slag, and other materials from their mines and coke ovens, and fetid and putrid matter from their tenant houses and privies, and so altered its condition by means of such deposits as to cause more frequent and disastrous overflows of the bottom lands along its course, the filling up of its bed. narrowing of its channel, and deposits on its shores, and with having injured and damaged the plaintiff's farm by such means. A demurrer

to the declaration was overruled and is relied upon in the assignments of error. If it was well taken and should result in a reversal, it will be unnecessary to consider all of the other numerous assignments of er

ror.

The coal works of three of the defendants are located on Crane creek, those of one of them on Flipping creek, and those of the other two on Widemouth creek. All of these streams flow into the Bluestone river at distances above the location of the plaintiff's farm not stated in the declaration. The deposits of the river, according to the allegations in the declaration, have filled up practically all of the holes in the stream, narrowed its channel, cast great quantities of cinder, coal, and sand over portions of its bottom lands, made heavy deposits along its shores, destroyed the plaintiff's fords of the river, by means of which he went from one part of his farm to another, caused mucky deposits along the shores of the stream, preventing cattle from going to it with safety for water, and on the edges of the bottom lands of plaintiff's farm increased the frequency and volume of overflows of the bottom lands, turned the waters black and so polluted them that they are unfit for use, and otherwise injured and damaged the plaintiff's farm. There is no allegation that the defendants acted in concert, collusion, or pursuit of a common design in the per

formance of the acts which are alleged to have injured and defiled the stream and damaged the plaintiff's land. It simply alleges that they did the specified wrongful acts, and that the injury and damage to the plaintiff's land resulted therefrom.

For legal justification of joinder of these defendants in one action and right to recover upon a declaration so framed, the plaintiff relies upon the decision of this court rendered in Day v. Louisville Coal & Coke Co. reported in 60 W. Va. at page 27, 10 L.R.A. (N.S.) 167, 53 S. E. 776. That action was prosecuted against a

single coal mining corporation, one of the defendants in this action, by the owner of another farm situated on the same stream, for injury and damage thereto by reason of acts of the same kind as those alleged in this declaration. But joint and several liability of all persons and corporations guilty of the wrongful acts charged in the declaration was asserted and adjudicated in that action in the determination of the extent of the liability of the defendant therein. It was held to be liable for the entire damages to his farm, wrought by the consequences of the acts of the defendant and all other persons and corporations whose wrongful acts of like kind had combined with those of the defendant in the infliction thereof. The substance of the court's conclusion respecting that phase of the case is embodied in point 2 of the syllabus, reading as follows: "When the negligent acts of two or more persons, though acting independently of each other, concurrently result in injury to the property of another, they are liable either jointly or separately."

In this case the soundness of that decision is questioned by the demurrer to the declaration, and also by the motion to set aside the verdict. The lack of concert, collusion, common design, or any other element of connection among the defendants is clearly revealed by the evidence. They are wholly independent concerns operating at different points on the tributaries of the river.

A careful examination of the opinion delivered in the case above referred to (Day v. Louisville Coal & Coke Co.) readily discloses failure on the part of the court to observe and apply a well-defined and firmly grounded exception to the general rule of liability of joint tort-feasors given in the opinion, or, stated more accurately, a limitation of the rule of joint liability and liability for entire damages. This exception or limitation is that there is no joint liability nor liability for entire damages when the tort-feasors act inde

pendently, without concert, collu

Joint debtors

tort-feasors acting

independently.

sion, or common design, and the injury to the plaintiff is consequential only,

or remotely resulting, as contradistinguished from direct and immediate. The rule as quoted in the opinion from Shearman & Redfield on Negligence puts in this element of directness, saying: "Persons who co-operate in an act directly causing injury are jointly liable for its consequences."

Nor does Cooley on Torts, 3d ed: vol. 1, p. 119, in the quotation from it, omit this element. It says: "If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause, and the parties held responsible, either jointly or severally, for the injury."

The same quotation from Shearman & Redfield is found in Boyd v. Watt, 27 Ohio St. 259, and the opinion filed in that case puts in the element of directness, saying: "Where separate and independent acts of negligence of two parties are the direct causes of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury." [Slater v. Mersereau, 64 N. Y. 138].

The decisions cited and relied upon in the opinion in Day v. Louisville Coal & Coke Co. all involved cases of direct injury by the wrongful acts complained of. In Boyd v. Watt, the action was founded upon a statute giving right of action against any person who had caused intoxication of another person, to the injury and damage of the plaintiff. The defendant undertook to limit his liability on the ground of contribution to the result by other persons, without his knowledge or consent. In its disposition of the case the court said: "If the defendant was using the means calculated to produce the injury, the law presumes he intended to produce it. If others, with or If others, with or without concert, were concurrently

co-operating with him, using like means, they were acting with the same common design, and if the injury resulted, each is liable, though each was acting without the knowl edge of what the other was doing."

It is to be observed that the unlawful act was done directly and immediately to the subject of the injury, the person to whom the liquor was unlawfully sold. The intoxication constituting the groundwork of the action was the immediate and direct consequence of the result of the unlawful act. In the opinion of the court it was not a case of direct injury to one subject resulting in consequential injury to another. In Johnson v. Chapman, 43 W. Va. 639, 28 S. E. 744, the injury was the direct and immediate result of the wrongful act. Two contiguous buildings had fallen upon a third because of the coexistent and concurring negligence of the separate owners to keep their separate walls in repair. They caused or permitted their buildings to fall upon that of the plaintiff and inflict immediate and direct injury upon it. In Grand Trunk R. Co. v. Cummings, 106 U S. 700, 27 L. ed. 266, 1 Sup. Ct. Rep. 493, the injury was inflicted by a collision of railway trains, wherefore it was necessarily immediate and direct.

Viewed from a merely practical standpoint, this distinction may not be important. Whether inflicted directly or immediately by the joint. coincident, or cotemporaneous action of the wrongdoers, or effected by combination of the consequences arising from the wrongful acts, the injury is equally serious, and the difficulty of apportioning the responsi bility among the wrongdoers equally great. Nevertheless the courts and text-writers, looking at it from a legal point of view, all regard it as important. It is marked in the edition of Shearman & Redfield on Negligence published in 1898. In § 123 of that edition it said that persons who act separately, each causing a separate injury, cannot be made jointly liable, even though the in