Tennessee Copper Co. 111 Tenn. 430, 78 S. W. 93; Miller v. Highland Ditch Co. 87 Cal. 430, 22 Am. St. Rep. 254, 25 Pac. 550; West Muncie Strawboard Co. v. Slack, 164 Ind. 21, 72 N. E. 879; Bowman v. Humphrey, 124 Iowa, 744, 100 N. W. 854; 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; Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566; 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; Little Schuylkill Nav. R. & Coal Co. v. Richards, 57 Pa. 142, 98 Am. Dec. 209; Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642; Norton v. Colusa Parrot Min. & Smelting Co. (C. C.) 167 Fed. 202. It is equally clear that a well-defined legal principle, or exception to a general principle or rule,

which this court overlooked or misapprehended in the decision of that case, stands against it. In this state the development of natural resources and location of mills and factories along its numerous streams has only fairly commenced; wherefore it is highly important that the rights of riparian owners and persons conducting divers kinds of business along the watercourses, and their remedies for wrongful acts respecting them and the adjacent lands, be correctly defined. Being clearly of the opinion that the decision in the Day Case is unsound in principle and contrary to the great weight of judicial opinion, we disapprove and

Decision overruled.

overrule it, in so far as it imposes liability for entire damages upon one of several wrongdoers

-pollution of stream.

a

and authorizes joinder of defendants, in an action for damages, under the circumstances here shown.

Reversal of the judgment and annulment of the verdict necessarily result from the conclusion just stated and the character of the evidence hereinbefore indicated.

A demurrer always lies for any substantial defect disclosed on the face of the declaration, and this is true as to parties. "If too many persons be made defendants, and the objection appear on the pleadings. either of the defendants may demur." 1 Chitty, Pl. 44.

This quotation applies only to declarations in actions ex contractu. The rule at common law in cases ex delicto may not have been quite so liberal. Whether it was or not, according to Chitty, depends upon the interpretation of his language. At page 85 he says: "If several persons be made defendants Pleadingjointly, where the failure to show tort could not in point of law be joint, they may demur."

joint liability.

There are some instances in which two or more persons can never be jointly liable for a tort, on account of its nature. This may be the class of cases to which the text just quoted applies, and it has been judicially applied to that class of cases. Orr v. Bank of United States, 1 Ohio, 36, 13 Am. Dec. 588; Russell v. Tomlinson, 2 Conn. 206; McKeown v. Johnson, 12 S. C. L. (1 McCord) 578, 10 Am. Dec. 698; but a more liberal interpretation is put upon it in Franklin F. Ins. Co. v. Jenkins, 3 Wend. 130, in which the defendants might have been made jointly liable upon proper allegations. These decisions are not inconsistent; the former class of cases being clearly within the text and the latter possibly so. It is to be observed that the text makes no necessary reference to the inherent character of the tort. "Where the tort could not in point of law be joint" may mean where the tort as alleged in the declaration could not in point of law be joint. This is the more reasonable interpretation, because it reconciles the terms with a basic and fundamental rule of pleading, namely, that the declaration must state a case with reasonable certainty. Here an allegation of joint or concerted action by the defendants is an essential ele

for greater tenderness towards the wilful wrongdoer than towards the merely negligent.

By the weight of authority and speaking of actions at law as distinguished from equity, independent tortfeasors, the act of each of whom alone would have caused some damage, are not liable jointly, but each is liable severally only for the damage caused by him.

The doctrine which has been asserted, that the rule is otherwise in case the wrong amounts to a public nuisance, does not seem satisfactory where the injury is not single.

In this annotation the question of the joint liability of successive owners of property for nuisance maintained thereon is not included. No effort has been made to include cases against one tort-feasor which hold that he is not liable for the wrongs done by another tort-feasor, but a few of these cases are cited in illustration.

Cases under the Civil Damage Acts are excluded. Some of these acts are drawn to provide for holding the person who causes or contributes to the intoxication liable for all the damages, and for a joint action against such of the contributors as the plaintiff elects.

b. Border line cases.

As a preface to the consideration of the subject of this annotation it is advisable, if not necessary, to refer to some of what may be called border line cases.

In Boston & A. R. Co. v. Shanly (1871) 107 Mass. 568, where, on orders of a certain third party, each of two independent manufacturers, each ignorant of the acts of the other, sent to a common carrier for transportation a different explosive, without notice of its character, which two explosives, while to some extent dangerous in themselves, were, it seems, particularly so in combination, and an explosion of them occurred, the manufacturers were held jointly liable to the carrier therefor.

In Wright v. Cooper (1802) 1 Tyler (Vt.) 425, it was held that the plaintiff properly sued in trespass, for overflowing his land, the several owners of two dams, one running from the

easterly bank of a stream to an island and the other from the island to the westerly bank, where one dam alone would not have caused the injury. (But the jury found against only one of the defendants, and their verdict was sustained.)

But in Lull v. Fox & W. Improv. Co. (1865) 19 Wis. 101, where one defendant had dammed one channel of a river and the other defendant the other channel whereby the plaintiff's land was overflowed, it was held that a joint action against the defendants for damages could not be maintained.

In Hill v. Smith (1867) 32 Cal. 166, where the jury found a verdict for the defendant, the court, while refusing to set it aside, said: "Where there is a large number of persons mining on a small stream, if each should deteriorate the water a little, although the injury from the act of one might be small, the combined result of the acts of all might render the water utterly unfit for further use; and if each could successfully defend an action on the ground that his act alone did not materially affect the water, the prior appropriator might be deprived of its use, and at the same time be without a remedy."

In an action for damages and injunction against an upper riparian proprietor for pollution of the ice in the plaintiff's mill pond, the court said: "It may well have been that the quantity of pomace in the pond was insignificant and harmless until the defendant made his contribution to it. The fact that others put refuse into the brook which combined with the defendant's refuse to produce the injury would not relieve him from liability. If different persons by several acts foul the same stream, each is responsible for the results of his own wrong, and may be restrained from doing the acts for which he is chargeable." Lawton v. Herrick (1910) 83 Conn. 417, 76 Atl. 986.

"Each one of several, acting independently, who wrongfully permits water to waste on to the land of another, is liable for his proportionate share of the injury caused thereby, even though the water allowed to run down

by each would do no harm if not combined with that of the others, and the injury is actually caused by the combined flow wherein the waters from all sources are mixed and indistinguishable. If injury follows as the combined result of the wrongful acts of several, acting independently, recovery may be had severally against each of such independent tort-feasors, in proportion to the contribution of cach to the injury." Woodland v. Portneuf-Marsh Valley Irrig. Co. (1915) 26 Idaho, 789, 146 Pac. 1106.

Where the acts of a number of persons in polluting a stream do not render the water unfit for the use of live stock, one who subsequently renders the water unfit for such purpose by casting substances into it which create noxious gases will be liable for the injury thus caused. Ferguson v. Firmenich Mfg. Co. (1889) 77 Iowa, 576, 14 Am. St. Rep. 319, 42 N. W. 448.

In an action for an injunction and damages for polluting a stream the court said: "Doubtless the defendant is not to be held for damages resulting merely from the independent acts of third persons. But it chose to discharge noxious substances into the stream and thereby so to pollute the water as to cause loss to the plaintiff. The water, as has been found, was already somewhat contaminated from other causes, so that it was not fit for drinking or domestic use. But this degree of pollution did not of itself harm the plaintiff. The fact that under other circumstances, if, for example, the water as it came to the defendant had been pure, the pollution caused by the defendant might have been less injurious to the plaintiff, is not material. In this respect, the case is like that presented when an injury has been done by a defendant, either purposely or negligently, to a plaintiff, which would not appreciably have harmed a well and normally strong man, but has more seriously affected the plaintiff by reason of some bodily weakness or infirmity peculiar to himself, as in Coleman v. New York & N. H. R. Co. (1870) 106 Mass. 178, 8 Am. Neg. Cas. 375. The wrongdoer takes the risk of the consequences

that may result from his injurious act.

Doubtless the defendant and

the third party who also contaminated the stream were not joint wrongdoers." Parker v. American Woolen Co. (1913) 215 Mass. 176, 102 N. E. 360.

In Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522, in granting an injunction against a manufacturer for polluting a stream, the court considered that it was shown that the defendant's acts alone were polluting the water, but discussed the question whether the action would lie if the pollution caused by the defendant was by itself not material, and said as to cases where the act of each alone was harmless; "I have no hesitation in saying that, in my opinion, a man so injured has distinctly a right to take the several persons who injure him in detail and to say, 'I am suffering from the combined acts of all of you; if I can prove that each one of you contributes to that result which is damaging me, I have a right to sue, and a right to ask the court to prevent each of you from sending in his contribution to that which in the aggregate does me damage."'"

In an action for a nuisance in the throwing out of clouds of smoke, soot, and gases, from a brick works, it was held error to instruct the jury that "to constitute the operation of defendant's work a nuisance, it must appear that the smoke, soot, and gas given off or emitted therefrom are such as, by themselves, considered alone, constitute a nuisance. Though it may appear that the smoke, soot, or gas given off from the defendant's works, when combined with that given off from other works or industries, did, so taken together, constitute a nuisance, yet the existence, if proven, of such a nuisance, so created, will not warrant a condemnation of the defendant's works in an action brought against it alone; the rule of law being that when one establishes works lawful in themselves, and not being in themselves a nuisance, they cannot be made a nuisance by proof that the operation thereof, combined with causes arising from the operation of other works in the vicinity, togeth

er constitute a nuisance." The court said: "It is well settled that each person who acts in maintaining a nuisance is liable for the resulting damage. If he act independently, and not in concert with others, he is liable for the damages which result from his own act only. . . . And the fact that it is difficult to measure accurately the damage which was caused by the wrongful act of each contributor to the aggregate result does not affect the rule, nor make anyone liable for the acts of others." Harley v. Merrill Brick Co. (1891) 83 Iowa, 73, 48 N. W. 1000.

11. General rule.

It is a general rule that acts of independent tort-feasors, each of which causes some damage, may not be combined to create a joint liability at law for damages.

Alabama. Sparkman V. Swift (1886) 81 Ala. 231, 8 So. 160. Arkansas. LeLaurin v. Murray (1905) 75 Ark. 232, 87 S. W. 131. Colorado.-Livesay V. First Nat. Bank (1906) 36 Colo. 526, 6 L.R.A. (N.S.) 598, 118 Am. St. Rep. 120, 86 Pac. 102.

Florida.-Symmes v. Prairie Pebble Phosphate Co. (1913) 66 Fla. 27, 63 So. 1; Standard Phosphate Co. v. Lunn (1913) 66 Fla. 220, 63 So. 429.

Georgia.-Howe v. Bradstreet Co. (1911) 135 Ga. 564, 69 S. E. 1082, Ann. Cas. 1912A, 214; Key v. Armour Fertilizer Works (1916) 18 Ga. App. 472, 89 S. E. 593.

Illinois. Willard v. Red Bank Oil Co. (1909) 151 Ill. App. 433.

Iowa. Wm. Tackaberry Co. v. Sioux City Service Co. (1911) 154 Iowa, 358, 40 L.R.A. (N.S.) 102, 132 N. W. 945, 134 N. W. 1064, Ann. Cas. 1914A, 1276. Kentucky. Kentucky Lumber Co. v. Hinkle (1891) 13 Ky. L. Rep. 173; Bonte v. Postel (1900) 109 Ky. 64, 51 L.R.A. 187, 58 S. W. 536; Polk v. Illinois C. R. Co. (1917) 175 Ky. 762, 195 S. W. 129.

Massachusetts.-Harriott v. Plimpton (1886) 166 Mass. 585, 44 N. E. 992.

Montana.-Howell v. Bent (1913) 48 Mont. 268, 137 Pac. 49.

Nevada. Blaisdell V. Stephens

Wisconsin. Lull V. Fox & W. Improv. Co. (1865) 19 Wis. 101.

England. Sadler v. Great Western P.. Co. [1896] A. C. 450, 65 L. J. Q. B. N. S. 462, 74 L. T. N. S. 561, 45 Week. Rep. 51; Thompson v. London County Council [1899] 1 Q. B. 840, 68 L. J. Q. B. N. S. 625, 47 Week. Rep. 433, 80 L. T. N. S. 512.

Canada. Austin v. Snyder (1861) 21 U. C. Q. B. 299; Hinds v. Barrie (1903) 6 Ont. L. Rep. 656.

A joint action will not lie against two independent railway companies for separate acts causing the obstruction of the highway in front of the plaintiff's premises with carts and Sadler v. Great Western R. Co. [1896] A. C. (Eng.) 450, 65 L. J. Q. B. N. S. 462, 74 L. T. N. S. 561, 45 Week. Rep. 51.

vans.

"If there are two distinct publications of the same libel, and there is no concert of action between the first and second publishers, a joint action against them will not lie." Howe v. Bradstreet Co. (1911) 135 Ga. 564, 69 S. E. 1082, Ann. Cas. 1912A, 214.

In LeLaurin v. Murray (1905) 75