
    Railroad Co. v. Hambleton.
    The L. M. R, R. Co. built its track on a street oí the village of Pulton, in 1843, at a grade agreed upon by the village council and the railroad, where the track has remained to the present time. Prom 1864 to 1869, the company gradually raised the grade of the track, altogether about twenty inches. In 1867, it laid a new track in the street, by putting, additional rails on the ties already there. On December 1, I860, it leased its road to the P., C. & St. L. E. E. for ninety-nine years, renewable thereafter for ever, and the latter company has continued to use the track ever since, and has, since the lease, raised the track somewhat.
    In an action against both companies by an owner of adjacent lots and property, for damages resulting from the change of grade and from the laying of the additional track:
    
      
      Held: 1. That tbe railroad company did not acquire the right to maintain its iraek at the raised grade and the additional track, until twenty-one years from the time it was so raised, of the additional track was so laid.
    2. That the plaintiff may recover for;.permarient injury to his property, ' resulting from a change of grade; or for the additional track, at any time before the right to maintain the track at the raised grade and the additional track, was complete.
    3. That the right to recover for-temporary injury resulting from a change of grade, or for the additional track, is limited to four years prior to the commencement of an action for the same.
    4. That one company having raised the grade and laid the additional track, and the other having taken possession of and continued the permanent use of the same, they are jointly liable for permanent injury to the property of the plaintiff resulting therefrom, and also for temporary injury occurring after the lease from causes created, without right, by the lessor and continued by the lessee.
    Error to tbe District Court of Hamilton County.
    The defendant in error, Hambleton, brought his action in the superior court of Cincinnati against the Little Miami Railroad Co. and the Pittsburgh, Cincinnati & St, Louis R. R. Co., alleging in' his petition that about the year 1848 the L. M. R. R. Co. built its track in what was then called Second street in the village of Pulton, and what is now known as Pulton avenue in the city of Cincinnati; that the track was built at a grade agreed upon by the railroad and the council of the village, and that the track has been used at the same place to the present time. He averred also, •that in 1859, he erected buildings on lots he then owned and still owns adjacent to this street, and that the buildings were built and-improvements made on his lots and property with reference to the grade of the street and the railroad at the time it was first built, and that afterwards and between the years 1863 and 1870, the railroad gradually raised the grade of its track in front of his property from eighteen to twenty inches, and that in the year 1867, it laid an additional track in the street by placing additional rails upon the ties already there, and that by reason of this additional track his rise of the. street was greatly, interrupted and he was hindered and impeded in the access to .his property through and across the street, and that in consequence of the raising of the grade of the track, his property was injured by overflow. His cellars, vaults, yard and other parts of his premises have been flooded, and he had been compelled to build a retaining wall to prevent the earth from the street from running over and upon his lots and property, and he claims also that the walls of his buildings have been permanently injured and that he has sustained damage by reason of permanent injury to his property.
    The petition also alleges that on December 1st, 1869, the L. M. R. R. Co. leased its road to the P., C. & St. L. R. R. Co. for ninety-nine years, renewable thereafter' for ever, and that the latter company has operated the road in same place, and in the same condition,to the present time.
    The defendants answered admitting the lease and denied all other allegations of the petition, and further answered that the cause of action did not accrue to the plaintiff within four years next previous to the commencement of the action.
    A trial in the superior court resulted in a verdict and judgment for the plaintiff, which judgment was affirmed by the district court, and to reverse this judgment is the object of this proceeding in error.
    
      Ramsey Sf Matthews, for plaintiff in error,
    1. The act of the railroad company in entering upon this property of the. plaintiff, and laying a new track, or raising the old one, was a trespass. Such acts have been so defined. See Wagner v. Troy, ¿•e. Co., 25 N. Y., 526, following 16 Id., 97; 24 Id., 655, 658.
    .2. As to the statute of limitations. This was an action for a trespass upon real property, and no inquiry of damages could, reach back of four years prior to the commencement of the action. Wilson v. Smith, 10 Wend., 824; Angelí on Lim., § 800, and authorities there cited.
    3. Misjoinder of parties. There was. a misjoinder of parties defendant, to thé prejudice manifestly of both defendants. The little Miami Railroad Company had no possession of the .railroad or control over its operation at any time after December 1st, 1869, a period of more than four years prior to the bringing of the action. The other defendant had no connection with the property, prior to that date. Assuming that the injuries complained of were trespass, there could be no joint liability without concert of action between the defendants in their commission. There was no such concert. If any of the acts complained of were in the nature of trespasses the misjoinder would exist and would defeat this action, although it might be true that for some of the acts complained of a joint liability might exist, which could be enforced in a proper form of action; that is to say, if the Little Miami Company created a nuisance upon its property and leased its property with the nuisance upon it, and the lessee continued to maintain the nuisance, then both landlord and tenant would be liable, but in that case the joint liability would only extend to losses suffered by the plaintiff subsequent to the date of the lease. A lessor and lessee could not be joined in an action in which the plaintiff could recover from the lessor damages which occurred prior to the lease and against lessor and lessee for damages subsequent to the lease. There could be but a single judgment against both. There could not be a several judgment against each for several acts, and a joint judgment for other joint acts. If this were an action for damages for a continuing nuisance, and the raising of the grade could be so defined, the action could not be maintained, notwithstanding the. necessary concession that an action will lie against both landlord and tenant, for injuries caused by nuisance while the nuisance, exists, having existed prior to the date of the lease, because, according to the testimony, it is not the same- nuisance. The little Miami Company prior to December, 1869, -had raised the track to a certain height, and there it stopped. Assuming that that was a nuisance, and that it occasioned damage, the Little Miami Company would be responsible for it, but in making the lease to the other defendant, it could not foresee that its lessee would raise the track further. It did not authorize such further raising, if it were illegal, and could not, upon any principle of law, be held responsible for such further additions, as the lessee, of its own motion, subsequently made.
    
      jRoadly, Johnson f Colston, for defendant Hambleton.
    1. Statute of limitations. Within what time was the action barred ? The answer to this question depends upon the character of the act or acts forming the basis of the cause of action. If that which is done amounts to a permanent destruction or modification of the lot owner’s easement or right of property in the street, the lot owner’s action therefor will not be barred until the usurpation has continued for a length of time necessary to create a right by prescription, which in Ohio is twenty-one years. But if that which is done be not continuous in its nature or effect, but merely occasional or intermittent, causing specific damage, then each of said acts is a distinct and separate trespass, and an action therefor should be brought-within four years. The latter is a mere tort, while the former is the assertion, by disseisin, of title to an incorporeal hereditament belonging to the lot owner. This distinction exists in the present case. Tootle v. Clifton, 22 Ohio St., 252; Beidelman v. Foulk, 5 Watts, 808; Styles v. Hooker, 7 Cow., 266; The Delaware <f* Raritan Canal Co. v. Wright, 1 Zab., 469; Same v. Lee, 2 Id., 243; 1 Robinson’s Prac., 478.
    2. Joint and several liability. The following principles of law establishing the joint and several liability in this case, are well settled, viz: that an action lies against him who erects a nuisance, and also against him who continues a nuisance erected by another. - This is so, although the author and continuer of the nuisance occupy the relation of landlord and tenant or of alienor and alienee, and their liability is joint and several. Taylor on Landlord and Tenant, § 175-; Ro.sswell v. Prior, 12 Mod,, 639; Staple:v. Spring, 10 Mass., *page 74; Woodfall Landlord and Tenant, 767; Shindleheek v. Moon, 32 Ohio St., 264; Waggoner v. Jérmaine, 3 Denio, 306; Fish v. Dodge, 4 Id., 311, 317; 
      Brown v. The Cuyuga f Sus. R. R., 12 N. Y., 486; Davenport v. RucJeman, 87 Id., 568; Swords v. Edgar,' 59 Id., 28; Rich v. Basterfield, 4 Man. Gr. & Scott, 805; Todd v. Plight, 8 Com. Bench, (N. S.), 377, and note at p. 390; Bouse v. Metcalfe, 27 Conn., 632; Law of Nuisance, (Wood) § 827, p. '872; Wharton on Negligence, § 817; Shearman & Red. on Negligence, § 56, p. 61; Cooley on Torts, 608-612; Belmig v. Jordan, 53 Ind., 21; Grady v. Wolsner, 46 Ala.,- 381; Owings v. Jones, 9 Md., 108, see p. 117. Where the nuisance existed at the time of the demise, and the landlord takes a covenant to repair and keep in repair from his tenant, this does not relieve the landlord from liability. Roswell v. Prior, 12 Mod., 639; Davenport v. Ruchman, 37 N. Y., 574; Wharton on Negligence, § 817; Swords v. Edgar, 59 N. Y., 28 ; Shipley v. Eifty Associates, 101 Mass., 251; Same v. Same, 106 Id., 200.
    3. There was no misjoinder of parties defendant. Eccleston v. Clipsham, 1 Saunders (Wms.), 153; People v. Erwin, 4 Denio, 129; Irwin v. Wood, 51 N Y., 224; Clark v. Fry, 8 Ohio St., 383; Wood on Nuisances, § 826, p.872; Tate M. K. f T. R. W. Co., 64 Mo., 149; Cooley on Torts, 133-137; Eakin v. Brown, 1 E. D. Smith, 44.
   McCauley, J.

The first question presented in the case is, upon what ground does a liability exist against either or both the defendants. The interest of an adjacent land owner in a street is so well defined in this state that nothing need be said about it further than to refer to the cases in which it has been defined. Bingham v. Doane, 9 Ohio, 168; Crawford v. The Village of Delaware, 7 Ohio St., 459; Railway v. Cumminsville, 14 Id., 523; Railway v. Lawrence, 38 Id., 41. The right to maintain the railroad track at the grade at which it was first laid could not have been' questioned at the" commencement of the action, by reason of lapse of time.

But the right to use the street for the further purpose of supporting another track and thereby further encumbering and obstructing the street, and of maintaining a grade much higher than the original grade was an invasion of the rights of the adjacent land owner, which when accomplished, must be followed by a liability for resulting injury.

This additional use of the street, by laying the new track and raising the grade from that at which it was first laid, is the ground of liability of the defendants. These new uses of the street, in the absence of any agreement with the adjacent land owner or of an appropriation of the right to so use the street, by a proceeding for that purpose, could not become complete until the same had been so used for the period of twenty-one years.

The action was against both companies, the lessor and lessee, and the verdict and judgment were against both. To sustain this judgment it is necessary to find in the case some ground of joint liability. No matter to what extent the defendants may be severally liable for anything either may have done or permitted, the judgment can not be sustained unless there is a joint liability.

The injury as shown by the proof is of two kinds, that resulting from overflows of water on the- premises of the plaintiff and damage consequent upon it and other injuries of a temporary kind, arid injury in its nature permanent, resulting mainly from a change of grade of the railroad, whereby the relative level of the property of the plaintiff and the railroad is broken up and destroyed, and permanent changes in the buildings and improvements of the plaintiff are made necessary* and in consequence of all which his property has been permanently damaged.

This permanent change of grade was made between the years 1868 and 1870, and the most of it while the Little Miami Company operated the road. In December, 1869, the Little Miami Company leased its road to the Pittsburgh, Cincinnati & St. Louis Company in the condition which caused the injury to the property of the plaintiff, in which condition the latter company has continued to use the road to the present time. This is a state of facts which makes both companies liable for the permanent injury to the property of the plaintiff ’ which resulted from raising the grade of the track. Raising the track to such an extent as to cause overflow of water upon adjacent premises, and throwing dirt upon the premises of plaintiff or requiring á retaining wall- to be built to prevent ground from the railroad from sliding down upon adjacent lands, is in the nature of a nuisance for which all persons áre liable who create cff continue the same.

Numerous cases are referred to by counsel for plaintiff in error involving the liability of lessor and lessee. But most of them are cases involving the separate liability of lessor and lessee. This case involves the joint liability of lessor and lessee, and this class of liability is very clearly applicable to a person who creates a nuisance jointly with him who continues it. Taylor’s Landlord & Tenant, § 175; Brown v. Woodworth, 2 Barb., 550; Swords v. Edgar, 59 N. Y., 28; Wood on the Law of Nuisance, 951 (2d ed.) ; Shearman & Redfield Neg., § 56; Cooley on Torts, 608-9.

The defendants below were therefore jointly liable for the permanent injury to the property of the plaintiff resulting from the change of grade. This liability was not limited to the injury of this kind after the lease. This injury from its nature could not be separated into that which accrued before the lease and that which accrued after it.

It accrued when the grade was raised, and continued as long as the raised grade was maintained, and all parties creating or continuing it are jointly liable for it. As to the temporary injury resulting from the raised track before the lease, the Little Miami Company alone would be liable for that. And this is so because the injury is not continuing in its nature, and having occurred before the lease, the lessee had no connection with it.' As to the temporary injury after the lease, both companies might be liable for it. If the lessor without right to do so, created that which at times caused damage, as by overflow of water or any injury merely temporary, and the lessee' continued the cause of such injury, both should be liable. The charge of the court on the trial below was correct, so far as the causes of damages were affected by limitation, that is, that for permanent injury the limitation would be twenty-one years, the whole period during which the acts of the defendants in continuing the cause of such injury was without legal right. And that for temporary injury the plaintiff would be limited to ■four years before his action for the same. The only serious defect in the charge was the failure of the court to define clearly the kinds of damage for which the defendants were jointly liable. But no proper request to charge on that part of the case was made by defendants; and all the testi- ■ mony on the trial is in the record, from which it plainly • appears that there was sufficient evidence of joint liability ,to support the verdict. The verdict therefore being clearly ¡supported by the evidence and being a proper result from the case before the jury, it should not be set aside for the «■ere indefiniteness of the charge upon a material part of the ease.

Many other questions are made by counsel on both sides, .•all of which have been considered* but none • of them, we think, are of such consequence as to affect the result we ¡have arrived at; we therefore omit further mention of them.

Judgment affirmed.  