Navigation, 57 Pa. 142 (Pa. 1868)

The opinion of the court was delivered, by

A&new, J.

All the assignments of error, from the 4th to the 11th inclusive, involve substantially the same question, and may be considered together. The plaintiff’s intestate was the owner of a dam and water-power upon the Little Schuylkill river. In process of time, from 1851 to 1858, the basin of the dam became filled with the coal-dirt, washed down by the stream from the mines above, of several owners, upon Little Schuylkill, Panther creek and other tributaries. They were separate collieries, worked independently of each other. The plaintiff seeks to charge the defendants below with the whole injury caused by the filling up of his basin. The substance of the charge and answers to points was, that if at the time the defendants were engaged in throwing the coal-dirt into the river, about ten miles above the dam, the same thing was being done at the other collieries, and the defendants knew of this, they were liable for the combined result of all the series of deposits of dirt from the mines above from 1851 till 1858. The aspects of the case were varied, by deposits being made on and along the banks of the streams, which were carried away by ordinary rains and freshets; but the above is the most direct statement of the injury alleged, and is taken therefore as the test of the principle laid down by the court. The doctrine of the learned judge is somewhat novel, though the case itself is new; but, if correct, is well calculated to alarm all riparian owners, who may find themselves by a slight negligence overwhelmed by others in gigantic ruin.

It is immaterial what may be the nature of their several acts, or how small their share in the ultimate injury. If, instead of coal-dirt, others were felling trees and suffering their tops and branches to float down the stream, finally finding a lodgment in the dam with the coal-dirt, he who threw in the coal-dirt, and he who felled the trees would each be responsible for the acts of the other. In the same manner separate trespassers who should haul their rubbish upon a city lot, and throw it upon the same pile, would each be liable for the whole, if the final result be the only criterion of liability. But the fallacy lies in the assumption that the deposit of the dirt by the stream in the basin is the foundation of liability. It is the immediate cause of the injury, but the ' ground of action is the negligent act above. The right of action arises upo.n the act of throwing the dirt into the stream — this is the tort, while the deposit below is only a consequence. The liability, therefore, began above with the defendant’s act upon his own land, and this act was wholly separate, and independent of all concert with others. His tort was several when it was committed, and it is difficult to see how it afterwards became joint, because its consequences united with other consequences. The union of consequences did not increase his injury. If the dirt were deposited mountain high by the stream his dirt filled only

its own space, and it was made neither more nor less by the accretions. True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may form some guide, and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand. But the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert. It would be simply to say, because the plaintiff fails to prove the injury one man does him, he may therefore recover from that one all the injury that others do.

This.is bad logic and hard law. Without concert of action no joint suit could be brought against the owners of all the collieries, and clearly this must be the test; for if the defendants can be held liable for the acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. But the moment we should find them jointly sued, then the want of concert and the several liability of each would be apparent. These principles are fully sustained by the following cases: Russell v. Tomlinson et al., 2 Conn. 206; Adams v. Hall, 2 Vermont 9; Van Steinberg v. Tobias, 17 Wend. 562; Buddington v. Sherer, 20 Pickering 477; Auchmutz v. Haen, 1 Denio 495; Partenheimer v. Van Order, 20 Barb. 479. These were cases where the dogs of several owners united in killing sheep, and where the cattle of different owners broke into, an enclosure and united in the damage. The concert and united action of the dogs and cattle were held to create no joint liability of their owners, notwithstanding the difficulty of determining the several injury done by the animals of each. The rule laid down in tlm last case was that where the owner of the garden could not prove1 the injury of each cow, the jury would be justified in concluding; that each did an equal injury. Several cases were cited in opposition, but do not, in our opinion, support the doctrine of the charge.

In Stone v. Dickerson, 5 Allen 27, where an officer made an arrest at the same instant upon nine writs, and the parties were held jointly liable for the trespass, the ground of action was the arrest itself, a single act, incapable of division or separation, but being authorized by all, all were held to have been concerned in the very act, which each authorized the same agent to commit. In Colgrove v. N. Y. and N. H. and N. Y. and Harlem Railroad Companies, 20 N. Y. Rep. 492 (6 Smith), the two companies were using the same track by joint arrangement governed by common rules, the collision of their trains was owing to mutual and concurring negligence, and the injury which was single, was therefore their concurrent and direct act. They were held to be jointly liable because of their joint use of the track, their common duty

to all travelling the road, and their concurrent negligence in the direct act which caused the injury. The case of the party-wall in this state was put on the same ground. The distinction between that case and this was sharply defined by our Brother Strong. It was there said that the maintenance of an insecure party-wall was a tort in which both participated. The act was single, and it was the occasion of th^ injury. The case is not to be confounded with actions of trespass brought for separate acts done by two or more defendants. Then if there be no concert, no common intent, there is no joint liability. Here, the keeping of the wall safe was a common duty, and a failure to do so was a common neglect: Klauder v. McGrath, 11 Casey 128. In principle, Bard et al. v. Yohn, 2 Id. 482, more resembles this case. There the effects of the independent acts of the defendants on the opposite sides of the street united in causing the injury, but they were not jointly liable, because there was no concert in the acts themselves.

It is needless to notice other questions arising upon the alleged negligence, excepting to say that the defendants as lessors were not liable for the acts of their tenants, not shown to have been done under their authority or command. The mere relation of landlord will not make the lessor liable for the negligence of his tenant: Bears v. Ambler, 9 Barr 193; Offerman v. Starr, 2 Id. 394.

Taking together all the judge said upon the measure of damages, it is not clear he committed a manifest error. There was an inaccuracy in the answer to the defendants’ 7th point, as to the profits that might have been made, which would appear to allow too much latitude in estimating imaginary losses, and will be corrected in another trial. The jury, however, seem to have gone astray in estimating the property as a total loss from 1851 to 1858. The correction, however, fell within the province of the court below.

The objection to the calculations sent out with the jury cannot be urged. No bill of exception was sealed. As a general rule, with some exceptions, the sending out of papers with the jury is regulated by the sound discretion of the court: O’Hara v. Richardson, 10 Wright 389.

The bills of exception to the evidence need no particular notice. We perceive nothing in them pointing to any manifest error.

The judgment is reversed, and a venire facias de novo awarded.