
    Alburtha Burghen et al., Plaintiffs, v. The Erie Railroad Co., Impleaded, Etc., et al., Defendants.
    (Supreme Court, Erie Special Term,
    March, 1907.)
    Parties — Plaintiffs — Joinder of plaintiffs — Who may be joined — Owners of separate lands in action to abate nuisance.
    Pleading — Demurrer — Grounds of demurrer to complaint — Surplusage.
    Several owners of separate parcels of land cannot unite in an action against a railroad company for damages to their respective lands from the flooding thereof by a stream whose natural flow has been impeded by the abutments of a bridge erected by the defendants; but they may unite in an action to abate the nuisance, and neither the allegations of damage nor the demand of separate money judgments render the complaint demurrable.
    Trial of the issues of law arising on a demurrer to the complaint.
    Wallace Thayer, for plaintiffs.
    Adelbert Moot, for demurring defendant.
   Wheeler, J.

This is a demurrer by the Erie Railroad Company to the plaintiffs’ complaint. The complaint alleges that the plaintiffs are the owners of various parcels or lots of real estate abutting on or adjacent to what is known as “ Smokes Greek ” each of the plaintiffs being the owner of a separate lot or parcel which is described and designated in the complaint. The complaint then alleges that, since the plaintiffs purchased and became the owners of their several properties, the defendant railroad companies have each erected bridges over and across the creek in question, and have so constructed the abutments thereto that the natural flow of the stream has been impeded and its waters dammed back, thus flooding the lands of the plaintiffs and damaging the same.

The complaint continues and alleges that “ the amount of damages which each plaintiff has suffered by reason of the overflow of his said lot, as above stated, in the years 1902, 1903, 1904 and 1905 is placed opposite the name of said plaintiff and the number of his said lot respectively,” and then follows a tabulated list of the different plaintiffs, some eighty-four in all, the number of the lot owned by each and the amount of alleged damage to each lot.

The prayer of the complaint asks the abatement of the alleged nuisance, “ and that each of said defendants be required to pay to each of said plaintiffs as the same may be apportioned and established on this trial, each of said plaintiffs’ damages as established and proven, and that the plaintiffs have the costs of this action,” etc.

The defendant The Erie Railroad demurs on several alleged grounds, but that particularly urged and argued is that an alleged cause of action for damages in favor of the plaintiff Alburtha M. Burghen has been improperly united with an alleged cause of action for damages in favor of each of her coplaintiffs; it being contended that a recovery by way of damages in favor of each plaintiff cannot be had.

It is conceded by counsel for the demurring defendant that it is not improper for various lot owners affected by the alleged nuisance to join in an action to abate it, and this is well established by a number of well-considered cases. Strobel v. Kerr Salt Co., 164 N. Y. 323, citing Emery v. Erskine, 66 Barb. 9-14; Reid v. Gifford, Hopk. Ch. 416, 477; Murray v. Hay, 1 Barb. Ch. 59; Blunt v. Hay, 4 Sandf. Ch. 362; Brady v. Weeks, 3 Barb. 157.

In the Strobel case it is said that “ while each owns a distinct piece of land situated upon a part of the stream separate from that abutted by the land of every other owner, they have a'common grievance against the defendant for an injury of the same kind, inflicted at the same time, and by the same acts. The common injury, although differing in degree as to each owner, makes a common interest and warrants a common remedy.”

So, too, it is held that the different defendants were properly joined as defendants in the action, as the allegation is that each has contributed toward the creation of the alleged nuisance. Warren v. Parkhurst, 186 N. Y. 45; Meyer v. Phillips, 97 id. 485. See also N. Y. C. & H. R. R. R. Co. v. Schuyler, 17 id. 592.

We are not aware, however, that the courts have gone to the extent of holding that, in an action brought by a number situated as these plaintiffs are, they can in the same action have their separate money damages determined and awarded. It cannot be said as to the damages suffered by each that the plaintiffs have a common grievance. On the contrary, while the right to abate the nuisance is a common one, the damages of each are separate and distinct and form a question in which the other coplaintiffs have no interest and cannot be heard on the trial. Therefore claims for such damages ought not to be litigated or disposed of in an action of this character, and this seems to be the law as established by the decisions of the courts.

In Brady v. Weeks, 3 Barb. 157, an action was brought by various owners of neighboring property to abate a nuisance caused by the maintenance of a slaughter-house, and the court held it was proper to unite the owners as parties plaintiff by reason of their common interest; but the court at the same time also held that the bill was rendered multifarious by inserting therein, in addition to the prayer to restrain, a prayer that the defendants be decreed to pay the plaintiffs, respectively, the damages they had sustained by the nuisance. See also Murray v. Hay, 1 Barb. Ch. 65; Peck v. Elder, 3 Sandf. Ch. 131; Davidson v. Isham, 9 27. J. Eq. 186; Demarest v. Hardham, 34 id. 469; Rowbotham v. Jones, 47 id. 337.

I, therefore, conclude that in this action the various plaintiffs cannot recover their separate damages, but their -relief is confined to the abatement of the alleged nuisance in which all have a common interest.

Assuming, therefore, that there can be no recovery of the individual damages alleged to have been sustained by the different plaintiffs, is the complaint for that reason demurrable? I think not. The allegations of the complaint that each parcel of land owned by the various plaintiffs was damaged in various amounts does not, in my judgment, necessarily amount to an allegation of a separate and distinct cause of action. These allegations may perhaps be deemed proper as showing that all the plaintiffs have a common interest in the abatement of the nuisance complained of and a right to a decree to that effect. At the most these additional allegations are irrelevant or redundant, and the remedy of the demurring defendant would he to strike them out under sections 545 and 546 of the Code.

ISTor does the fact that the plaintiffs demand separate money judgments change the case. The prajer for relief, however broad, does not make a complaint demurrable. The court, notwithstanding the extent of the prayer, may render such relief,' and no more, as the facts proven warrant.

The demurrer is, therefore, overruled with permission to the demurring defendant to answer within twenty days after service of a copy of the judgment to he entered hereon, upon payment of costs of this demurrer.

Demurrer overruled, with permission to demurring defendant to answer within twenty days, upon payment of costs of this demurrer.  