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more it must interfere with sleep in the early hours of the night as seriously as noises do. This would be especially true in the summer season, when comfort calls for open windows. It would seem that particular advertisements of this kind might be restrained as nuisances, not merely on æsthetic grounds, but because sleeplessness and broken rest impair the health. Indeed, general ordinances against advertisements of that class might be upheld as health laws.

Wilbur Larremore. New York.

1 Hill v. McBurney, 38 S. E. Rep. 42 (Ga.).

A STUDY IN THE LAW OF TORTS.

THE

'HE owner of a tract of land which was bounded on two sides

by a circuitous river, brought six separate actions against six mining companies, to recover compensation for alleged damage done to the land by the deposit of tailings from the tin mines of the six defendant companies into the river, and the subsequent carriage of a portion of such tailings on to the land by the river in flood-time. The portion of the tailings which was carried on to the land by the river was deposited on it in the form of a fine red silt which made a layer of red soil on the surface of the land, varying in thickness in accordance with the contour of the land. By the consent of all the parties the six separate actions were tried together, without a jury, and in each case the trial resulted in a judgment in favor of the defendant company. The land was let to a tenant who used it for pastoral purposes, and who had occupied it for more than six years before the commencement of the actions; and the ground of the judgment, in each case, was that the evidence did not prove that a quantity of silt sufficient to cause any appreciable damage to the plaintiff's reversionary interest in the land had come from the tailings deposited in the river by the defendant company. The silt which came from the mines of several of the defendant companies was not composed of any ingredients deleterious to the land of the plaintiff. On th contrary, it was composed of ingredients that would have made it a beneficial addition to the land if it had been deposited on it in convenient quantities at a convenient season of the year; and it did not appear that the silt which came from the mine of any of the other defendant companies was of a character positively deleterious to the plaintiff's land.

The several mines of the six defendant companies were situated at distances varying from six to forty miles above the plaintiff's land, as measured by the course of the river; and the mine nearest to the plaintiff's land was a very small one, from which a very small quantity of tailings had been deposited in the river. The next nearest mine was about twelve miles above the plaintiff's land, and it had been worked on a much smaller scale of operations than that on which mining operations had been conducted in the mines

above it. Judging from the color and composition of the silt deposited on the plaintiff's land, the greater part of it appeared to have come from the mines more than thirty miles above the land.

The character of the damage which the plaintiff alleged to have been caused to his land by the deposit of the silt upon it was a repeated interference with the natural growth of the herbage growing on it, and a repeated covering of the herbage with a thin layer of silt which prevented the cattle from eating it until subsequent rains had washed the silt from it; in consequence of which he had been compelled to reduce the rent of the land, and had therefore sustained pecuniary loss through the conduct of the defendant companies.

The refusal of the tenant to continue to pay the same rent which he had previously paid for the land was relied upon by the plaintiff as conclusive evidence that his reversionary interest in the land had been appreciably injured. But in the cases of Mumford v. The Oxford, Worcester and Wolverhampton Railway Company and Simpson v. Savage ? it was definitely decided that the relinquishment of a property by a tenant, in consequence of the tortious conduct of the occupier of an adjoining property, and the inability of the owner of the relinquished property to obtain another tenant at the same rent as that paid by the previous tenant, was not sufficient proof per se of such a permanent injury to the property as would enable the owner of it to maintain action for damages in respect of his reversionary interest in it. In each of those cases the tenant could undoubtedly have maintained an action for the inconvenience and discomfort suffered by him in consequence of the conduct of the defendant; and in each of the six cases now under review the tenant could have undoubtedly maintained an action against the defendant company for a technical trespass at the least, and he could also have maintained an action for substantial damages, if in any one of the six cases he could have proved that he had suffered appreciable damage from a repeated interruption of his ordinary use of the land, by the deposit of only so much silt as could be reasonably supposed to have come from the mine of the particular defendant. But the owner of the land failed, in each of the six cases, because the judge came to the conclusion that the evidence did not establish the allegation of anything in the nature of a permanent or continuing damage to the land in consequence of the separate conduct of the particular defendant. i H. & N. 34.

2 1 C. B. (N. s.) 347.

1

If all the mines on the banks of the river had belonged to one company, or if they had been worked in conjunction in such a manner that the deposit of tailings in the river from any one of them was an act performed with the knowledge and for the benefit of the owners of all of the other mines, the plaintiff undoubtedly would have had a good cause of action against the single company, or the combination of companies, as the case might be. But each of the six defendant companies, in the cases above mentioned, was conducting its mining operations quite independently of all the other defendants, and none of them could be said to be legally cognizant of the operation carried on by any of the others. In such a case it seems that the owner of a reversionary interest in any land that is leased for a term of years to a tenant, and which is substantially injured by the aggregate operations of several persons who have acted independently of one another, cannot join any two or more of such persons as defendants in a single action for damages, and is therefore without a remedy in the nature of an action for compensation, if he cannot prove that an appreciable portion of the injury done to his land has been caused solely by the conduct of the single defendant in any action he may bring to obtain compensation for the loss he has sustained.

The evidence produced by the six defendant companies in the six cases now under review clearly proved that a much larger quantity of tailings than the total amount deposited by them in the river had been deposited in it by other companies and by a number of single persons, in the working of mines which had been abandoned some years before the actions were commenced; and that only a small portion of the tailings deposited in the river from time to time, in the working of a mine thirty or twenty miles above the plaintiff's land, would be carried by the river so far down its course, within a period of six years from the time of deposit of it in the river. An inspection of several miles of the bed and banks of the river demonstrated conclusively that a very large portion of the total quantity of tailings deposited in the river, during the previous twenty years, had remained permanently in the bed of the river, and had raised the level of it, in many places, as much as seven or eight feet above the original level of it. It was also proved that it was not until mining operations had been carried on for some years in several mines situated on the banks of the river, that any appreciable quantity of silt had appeared on the plaintiff's land. From these facts, and from a large quantity of expert evidence in

reference to the character and condition of the bed and banks of the river and the operation of floods upon the tailings deposited into it, the judge arrived at the conclusion that the silt appearing from time to time upon the plaintiff's land, in any case in which it came from a mine twenty miles or more distant, came from tailings that had been deposited in the river some years before the silt reached the land, and that silt would also be carried from time to time on to the plaintiff's land from the banks of the river independently of any mining operations. The quantity of silt carried on to the plaintiff's land from the banks of the river, without any disturbance of them by mining operations, would usually be very small, in fact almost imperceptible; but it was proved that on several occasions, within a period of ten or twelve years before the commencement of the actions, very heavy floods had torn away large quantities of soil from both banks of the river nearer to the plaintiff's land than the mines of some of the defendant companies. It was, therefore, a very safe inference that on several occasions, within the six years immediately preceding the commencement of the actions, some of the silt deposited on the plaintiff's land had come from the banks of the river.

In view of the conclusion of fact at which the judge arrived, in reference to the quantity of silt brought on to the plaintiff's land from the mine of any one of the six defendant companies, within a period of six years before the commencement of the actions, it was impossible for him to declare that the conduct of any one of the defendant companies, regarded apart from the contemporaneous conduct of the other defendants, had caused any injury to the plaintiff's reversionary interest in the land. It was also very problematical whether the total quantity of tailings deposited by all the six defendant companies in the river, within any particular period of six years, would have caused any substantial and continuing damage to the plaintiff's land, if there had not been any other tailings deposited at any time in the river from other mines. But, assuming that the total quantity of soil brought down on to the plaintiff's land by the river from all the mines of the six defendant companies, and from all the other mines which were being worked on the banks of the river at the same time, was sufficient to cause a substantial and continuing injury to the plaintiff's land, the important question suggested by the judgment in each case is, whether the plaintiff could have obtained an injunction to restrain the owners of the several mines from continuing to deposit silt in

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