Chipman v. Palmer

The exception is to that part of the charge relating to damages. This embraced two points; one the measure of damages, the other the proportion of the defendant’s liability. If either was correct, the exception was too general. (Groat v. Gile, 51 N. Y., 431; Walsh v. Kelly, 40 id., 556.)

The rule of damages was correctly laid down. (Francis v. Schoellkopp, 53 N. Y., 152.)

This would seem fatal to the exception.

But I think the other part’ of the charge was correct. The plaintiff treats the nuisance as the result of a joint act of several persons, of whom the defendant is one. But it is not. It may be difficult to distinguish, in such a case, one part of the nuisance from the other. But yet it is evident that if the defendant’s sewer made the stream offensive, it did so neither more nor less because other sewers did a similar injury. Indeed it is not difficult to suggest a case *519where the impurity produced by the act of one person might be distinguished from that produced by the act of another. A manu-factory, for instance, might discharge into such a stream substances which in odor and appearance might be distinguished from the discharge of a house sewer. Would there be any reason for holding the owner of the house liable for the damages occasioned by the manufactory ?

The plaintiff cites several cases to support his views. They establish a familiar doctrine, but do not, I think, apply to this case. The cases are Sheridan v. Brook. and N. R. R. (36 N. Y., 39); Chapman v. N. H. R. R. (19 id., 341); Colegrove v. Harlem R. R. (20 id., 492); Creed v. Hartmann (29 id., 591). The doctrine is, that for a personal injury occasioned by the negligence of several persons, there is a separate as well as a joint liability, and the person injured may, at his option, sue one or all of the wrong doers.

But the case in 29 N. Y., 591 is a case of a joint act. The others are cases where the separate negligence of two parties combined to produce the injury. That is, the negligence of one would not have caused the injury had it not been for the negligence of the other.

Now, in the present case, if the defendant’s sewer had run into one stream and had made it offensive to the plaintiff; and if the other persons referred to above had discharged their sewers into another stream, and had made that also offensive to the plaintiff, there would plainly be no joint liability, and no liability' of the defendant except for his own acts. This rule would be the same if the two supposed streams ran side by side, with a very narrow bank between them. And it would still be the same if the two supposed streams at last united before they reached the plaintiff’s premises.

The learned justice charged that the defendant was liable for the injury caused by his own act. There might be a case where two independent sewers emptied into a stream, and the nuisance produced by each was so great that, practically, the two did no more harm than each would do alone. I do not understand that the learned justice charged that, in such a case, each would be liable only for half the injury.

The case in question was quite different. It was really doubtful *520whether the sewage from the defendant’s house had any appreciable effect on the stream at that part where it was claimed to be offensive to the plaintiff. Many other sewers emptied into the stream at points nearer to the plaintiff; so that it was left for the jury to ascertain what part of the injury was caused by the defendant.

The doctrine that the defendant is not liable for the injury produced by the acts of others who drained into the stream is sustained by the case of Wallace v. Drew (59 Barb., 413), where several persons, acting independently, had obstructed a stream, and thus had injured the land of the plaintiff.

It is illustrated by cases where injuries have been done, at the same time, by domestic animals belonging to different owners. (Van Steenburgh v. Tobias, 17 Wend., 562; Achmuty v. Ham, 1 Den., 495; Partenheimer v. Van Order, 20 Barb., 479.) And it is laid down in the case of Wood v. Sutliff.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.