
    Alburtha M. Burghen and Others, Respondents, v. Erie Railroad Company, Appellant, Impleaded with Hamburg Railway Company and Others, Defendants.
    Fourth Department,
    January 8, 1908.
    Nuisance '— pleading — injunction and money damages — parties — misjoinder of parties claiming individual damage. '
    The complaint of a single plaintiff in equity to restrain the continuance of a nuisance created by the separate acts of several defendants is not demurrable on the ground of multifariousness.because it unites with the cause for equitable relief one for damages already suffered.
    But, although several parties whose individual lands have been inj ured by a nuisance may unite as plaintiffs in an action to abate it, they cannot recover in that action the damage caused to each, the relief being confined to the abatement of the- nuisances in which they have a common interest.
    Such complaint by several plaintiffs asking injunction and separate damage is bad on demurrer, and not sustainable upon the ground that the allegations as to damage are irrelevant and redundant, for it seeks a recovery for each plaintiff on matters with which the others have no concern.
    Appeal by the defendant, the Erie Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 21st day of Mlar.ch, 1907, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the said defendant’s amended demurrer to the complaint.
    
      William L. Marcy [S. Fay Carr with him on the brief], for the appellant.
    
      Wallace Thayer, for the respondents.
   Robson, J.:

The complaint to which demurrer is interposed is made by a large number of plaintiffs, who own in severalty parcels of land abutting oil, or adjacent to, a natural stream of water known as Smokes creek. - They join in charging that the individual property of each has been damaged by the overflow of the waters of the creek caused by the unauthorized erection and 'maintenance by each of the defendants of a bridge across the creek with abutments thereto, so constructed as to impede the natural flow of the stream and dam back its waters, thus flooding plaintiffs’ lands and causing damage thereto.' The complaint further sets out in tabulated form the specific amount of damages which it is claimed each plaintiff “ has suffered by reason of the overflow of his said lot as above stated in the years 1902, 1903, 1904 and 1905.” It aláp contains allegations as to future damages upon which the application for equitable relief is based. The prayer for relief is specifically that defendants be required. to abate the nuisance and remove the obstructions complained of “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 plaintiff’s damages as established and proven.”

The action as disclosed by the complaint, which we' have summarized, appears to be one in equity to procure abatement of an alleged nuisance, and in addition to recover the separate damages which plaintiffs claim' to have suffered by reason of its maintenance by defendants up to the time the action was begun.

That a complaint in an equitable action to restrain the continuance of a nuisance, to the creation of which the separate acts of several defendants had contributed, is not “ considered as a bill in equity,” demurrable on the ground of multifariousness because in it plaintiff had united with his cause of action for equitable relief a demand for damages already suffered by reason of the nuisance, was held in Warren v. Parkhurst (186 N. Y. 45).

The only other ground of demurrer which-it is necessary to consider is as stated by the court at Special Term : “That an alleged cause of action for damages in favor of the plaintiff Alburtha Mi 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 wav of damages in favor of each plaintiff cannot' be had.” (53 Misc. Rep. 457.)

' The court at Special Term determined, as we believe correctly, that in this action the various plaintiffs cannot recover their separ rate damages, but their relief is confined to the abatement of the alleged nuisance in which all have a common interest.”

The reasons for - arriving at that conclusion are clearly and concisely stated as follows: “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 eách 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.” (Citing Brady v. Weeks, 3 Barb. 157; Murray v. Hay, 1 Barb. Ch. 59, 65; Peck v. Elder, 3 Sandf. 131; Davidson v. Isham, 9 N. J. Eq. 186; Demarest v. Hardham, 34 id. 469; Rowbotham v. Jones, 47 id. 337.)

The' court, however, has determined that the allegation of the complaint, that each parcel of land owned by the.various plaintiffs was damaged by the existence of the alleged nuisance in the several amounts specifically alleged in the complaint, does.not amount neces-. sarily to an allegation of a separate and distinct cause of action; and may 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; and concludes that at the most these allegations are irrelevant or redundant.

With this conclusion we are unable to agree. If the plaintiff Burghen had alone brought this action against these same defendants, as concededly she might have done, and had pleaded the same facts as her cause of action, excluding those only by which her coplaintiffs> are now connected therewith, we think there. could be no question but that she would have pleaded a cause of action on its face entitling her not only to equitable relief for the abatement of the nuisance complained of, but also to an award of such damages as she should prove she had already sustained because of the nuisance. (Warren v. Parkhurst, supra.) Instead of each plaintiff bringing a separate action to enforce his individual rights, they have chosen to unite in one action by which they clearly seek not only to obtain the abatement .of the nuisance in which relief they all ha ve a common interest, but in addition thereto their several .damages, which the maintenance of the. nuisance by.defendants has occasioned. Whether the separate allegations upon which a demand of judgment for damages is based amount to the statement of a separate and distinct cause of action, or whether they are simply a statement of a part of a single cause of action, which-each plaintiff, if suing alone, could have pleaded and recovered for with the equitable relief for abatement of the nuisance, can make no difference in disposing of this case; for, in either event, so far as the damages are concerned, whether the claim therefor be a separate cause of action in favor of each plaintiff or a part of the cause of action alleged to exist in favor of each of them, to that extent at least the cause of action sought to be alleged for each separate plaintiff is one in which the other plaintiffs have no concern.

The interlocutory judgment should be reversed, with costs, and demurrer sustained, with costs, with leave to plaintiffs on payment of costs in this court and the court below to make and serve an amended complaint herein.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiffs to plead over upon payment of the costs of the demurrer and of this appeal.  