§ 395. If the grantee erects a new nuisance upon his premises, he is an original wrong-doer and not entitled to notice.1 Such new nuisance may be created by a new use of existing structures, as by increasing the height of a dam,2 or by using flash-boards, which were formerly used in a proper manner, in such a way as to raise the water to a greater height than he had a lawful right to raise it;3 or by keeping closed the gates in a dam, which have been habitually kept open, whereby water is diverted from the plaintiff.4 § 396. It is a general rule that one, any, or all of several joint wrong-doers may be sued. In other words, the liability for torts is both joint and several, and every person who joins in committing a tort is separately liable therefor, and cannot escape his liability, or compel the joinder of other persons by showing that such others are liable also. But this rule is modified where the cause of action is against persons in respect of their common interest in land. Where the injury arises from the state of their land, apart from any act, the liability is simply joint, and all must be made defendants.7 But if the injury arises from the acts of cotenants upon their land, the general rule applies, and any or all of the wrong-doers may be sued. Applying these rules to injuries affecting waters, it follows that for any nuisance caused by a misfeasance by co-tenants, as by wrongfully maintaining a dam or polluting a stream, the plaintiff might sue one or all of the co-tenants; but where the injury proceeds from a mere omission of the land-owners to perform their duties in respect to their land, the tort is simply joint, and all must be sued; and so the courts have held.8 § 397. If one of two tenants in common of a mill use it to the nuisance of a stranger, the other owner not actually participating in the wrong is not liable.1 A joint tort must Hen. 4, p. 8, case 10; Sutton v. Clarke 6 Taunt. 29; Low v. Mumford, 14 Johns. 426; Simpson v. Seavey, 8 Greenl. 138; Southard v. Hill, 44 Maine, 92; Sumner . Tileston, 4 Pick. 308. And see Converse v. Symmes, 10 Mass. 377. In the Abbe de Stratforde's case (7 Hen. 4, p. 8, case 10), an action of trespass on the case was brought against him, and the plaintiff averred that the defendant held certain land, by reason whereof he ought to repair a wall on the bank of the Thames; that the plaintiff had lands adjoining, and that for default of repairing the wall his meadows were drowned. To which Skrene said: "It may be that the abbot had nothing in the land by cause whereof he should be charged, but jointly with another," "in which case the one cannot answer without the other." In Sutton v. Clarke, 6 Taunt. 29, the suit was against the chairman of a board of trustees of a turnpike, who had caused a trench to be cut in the road, whereby the plaintiff's land was overflowed. It was held that the other members of the board need not be joined. Low v. Mumford, 14 Johns. 426, was an action for keeping up a mill-dam on the Susquehanna River below the plaintiff's land, and causing the water to overflow it. The defendant pleaded in abatement that he held the lands on which the mill-dam was erected in joint tenancy with other persons who were not made parties. The court above held the joinder unnecessary. Platt, J., in speaking of the Abbe de Stratforde's case, said: "The gist of the action, therefore, was that the defendant was such proprietor, and had neglected a duty incident to his title. The title to the land on which the nuisance existed was, therefore, directly in question; for, if the abbot was not the owner of the land, he was not chargeable with neglect nor liable for the nuisance. But in this case the action is for a nuisance arising from an act of misfeasance, the keeping up' a mill-dam on a stream below the plaintiff's land." The title to that land cannot come in question in this suit, for the maintaining such a dam is equally a nuisance, and the defendants are equally liable for damages whether the defendants own the land as joint tenants with others, or whether they are sole proprietors, or whether they have any right whatever in it.” "Unless the title comes in question, there is no difference in this respect, in cases arising ex delicto between actions merely personal and those which concern the realty." Sumner v. Tileston, 4 Pick. 308, was an action against three defendants for erecting a dam, by means whereof the plaintiff's mills were obstructed. Two of the defendants pleaded in abatement the death of the third, pending the suit; but the pleas were held ill, as the action was simply ex delicto, and it did not appear that the defendants were charged by reason of their holding real estate as co-tenants. In Converse v. Symmes, 10 Mass. 377, which was also for maintaining a dam and flooding land, the non-joinder of a tenant in common was pleaded in bar, and it was held matter only for abatement. 1 Simpson . Seavey, 8 Greenl. 138. In this case four persons owned a sawmill, and three of them erected a lathmill inside the saw-mill, for their separate use, the rubbish thrown from which obstructed the mills below. It was held, in an action on the case against all the owners of the saw-mill for this injury, that the fourth owner, having no interest in the lath-mill or occupancy thereof, was not liable. arise out of a single and joint act, and immediate juxtaposition of different acts will not make a tort joint. Where a land-owner had covered a stream flowing through his land, and had used the stream as a sewer, and increased the volume of water in the stream, it was held that they could not be made jointly liable; and that the fact that the effects of their several wrongful acts were produced at the same time and place did not affect the question of liability, but only of damages.1 § 398. Where the injury complained of results from the separate acts of many persons, any one contributing to produce the injury is separately liable for the injury which he causes. So where the flow of a stream was obstructed by several distinct causes, and water was thrown back upon the plaintiff's premises, the court said: "If the injury is produced by the joint action of several parties, and especially if it is the result of the independent action of several parties contributing thereto, though not in combination or by concert, it is no defence that all are not made defendants"; but that fact can be considered only upon the question of damages.' 3 § 399. It is not necessary that one should be the owner or even occupier of the freehold in order to become liable for erecting a nuisance, and on the other hand the owner is not liable for nuisances erected on his land without his In Dorman v. Ames, the court said: "It is not necessary in an action of this nature that a person charged with erecting the nuisance should be the owner of the freehold, or any part of it upon which the dam is erected; it is sufficient if he is a party to the erection of the obstruction claimed to be a nuisance." In Saxby v. Manchester 1 Sellick r. Hall, 47 Conn. 260. 2 Wheeler v. Worcester, 10 Allen, 591; Chipman v. Palmer, 9 Hun, 517; s. c. 77 N. Y. 51; Chenango Bridge Co. v. Lewis, 63 Barb. 111; Arimond v. Green Bay, 35 Wis. 41; Hill v. Smith, 32 Cal. 166; Keyes v. Little York Gold Washing & Water Co., 53 Cal. 724; Little Schuylkill Nav. Co. v. Richards, 53 Penn. St. 142; Gladfelter v. Walker, 40 Md. 1; Buccleuch v. Cowan, 5 Macph. Sc. Sess. Cas. (3rd ser.), 214. 3 Wheeler v. Worcester, 10 Allen, 591. 4 Dorman v. Ames, 12 Minn. 451, 456. Railway Co.,1 the defendants were owners of the soil of a stream which supplied water to two print works, both of which had formerly been occupied by A., who had erected a weir across the stream and diverted water from one of the works to supply the other. The plaintiff, becoming lessee of the former works and entitled to the water from the stream, removed the weir, which was shortly afterwards replaced by A., as it was supposed, but without the authority of the defendants. The court held that they were not responsible for the acts of A., or for the continuance of the nuisance. So one does not become a party to the wrong by deriving benefit from it. If a mill-owner increases the height of the stream, and in so doing wrongfully flows the lands above, another mill-owner who derives benefit from the increase, but who contributes to it in no way, is not liable for the flowage to those who are injured thereby. But if he pays anything for the benefit which he enjoys, he will be liable for the injury caused by the wrong done in producing that benefit.2 § 400. At common law an action to recover damages sustained from diversion, obstruction, or flowage, caused by the defendant's wrongful acts, died with the defendant. But this has been changed by statute in several of the States.3 § 401. It was at one time doubted whether case could be maintained for a nuisance which caused no actual damage to the plaintiff; but the rule is well settled both in England and America, that for any nuisance which infringes upon the rights of the plaintiff, or which would abridge his present or potential use of his property, the action will lie although it causes no present actual damage.1 376. 1 L. R. 4 C. P. 198. gives a rule apparently contrary 10 2 Tourtellot v. Phelps, 4 Gray, 370, that above. In Bk. II., c. 30, § 2, 154 8 Ten Eyck v. Runk, 31 N. J. L. 428. 4 Ante, § 214. A statement in Britton (written about 1300 A.D.) (1 Nichols's ed. 398), Britton says: "Of nuisances, however, some are both tortious and hurtful, others hurtful, yet not tortious; therefore, it In § 402. The case usually treated as the leading case is Duncombe v. Randall,1 where it is said: "If one had anciently ponds which are replenished by channels out of a river, he cannot change the channels if any prejudice accrew to another by that." In Westbury v. Pond, cited in Fineux v. Hovenden, it was held that one of a body of people entitled to a common watering-place, which the defendant obstructed, might bring an action on the case, although there was no actual and particular damage to the plaintiff. The principal English authorities by which the doctrine opposed to that given above is seemingly supported, are Williams v. Morland, Wright v. Howard, and Miner v. Gilmour.5 Williams v. Morland the case was for diverting a stream by a dam, and, it was alleged, causing injury to the plaintiff's land. The jury found that the plaintiff was uninjured, but that the defendant had no right to stop the water. The judges all used language seemingly opposed to the rule. Holroyd, J., said: "The mere obstruction of the water which had been used to flow through his lands does not of itself give any right of action. In order to entitle himself to recover, he should show the loss of some benefit, or the deterioration of the value of the premises." But the ground of the decision was that no such damage as that alleged was shown. In Wright v. Howard, Vice Chancellor Sir John Leach, in deciding upon a bill for specific performance of a contract to purchase land with water-rights, and to which there was a cross bill for cancellation, remarks obiter: "It appears to me that no action will lie for diverting or throwing back water except by a person who sustains an actual injury." But the distinction between actual injury and actual |