RodmáN, J.
(After stating the facts as above.) Three points are made by the defendants:
1. That inasmuch as Boomer and Litchfield never executed or formally became parties to the deed of April 30th 1855, they were not bound by the conditions and covenants on their part therein contained. It is not denied in the answer, and it is expressly found by the jury, that they accepted the deed, and that their assignees accepted aud used the easement granted in it.
We had occasion to consider this question in
Maynard
v.
Moore,
76 N. C. 158, and it is there said, that a party who accepts a deed containing covenants on his part, is bound to perform them, although he does not' execute the deed as a party. For that, the case of
Finley
v.
Wilson,
4 Zab. (N. J.) 311, is cited. The true reference is 2 Zab. 311. See also on this point
Earle
v.
Mayor of New Brunswick,
38 N. J. 47; 13 Pick. 323; 9 Metc. 396;
In the present case however there is no necessity for resorting to that doctrine.
In the deed under which the defendants claim, the grant of the easement is expressly made conditional upon the acquisition by the grantees, of a right to drain through the Stanly canal, and provision is made for their enlarging that canal iii conjunction with the plaintiff. The deed, after reciting that Boomer and Litchfield owned adjoining lands-
which they could not conveniently drain except through the land of the plaintiff, and that plaintiff had a right to drain his own laud only, through the Stanly canal, and that said plaintiff was willing ‘‘to .grant a privilege therefor on certain •conditions, &c.j” says; “Now
if
said Roomer and Litchfield •shall procure from the owner of said i Stanly) land, a right to •drain or ditch, &c., of sufficient width and compass to discharge and carry off all the water which may be forced, •down'the drains hereinafter granted them through my land, and shall in conjunction with myself, cut out and keep open said canal leading to Wysocking, (the Stanly canal) &c.” “Then this indenture witnesseth,” that said Long grants to .Boomer and his heirs and assigns, au easement ¡to cut into Long’s ditch; and also grants to Litchfield and his heirs and assigns, a similar easement; the said easements to be held as appendages to the several pieces of land then owned By Boomer and Litchfield respectively.
Then the said Boomer and Litchfield severally covenant for themselves and their respective heirs .and assigns, to keep open and in good order “the said ditch,” (meaning, as wé asp.ume, the ditch or ditches authorized to be cut through the land of the plaintiff. The precise meaning of the words is not material in the present action.)
The word “if” is an apt one to -express a condition precedent to the creation of an casement; and the whole language and frame of the deed show that it was the.inteution of the grantor, that the grant should not go into effect, at least, until the grantees had acquired an easement, in the Stanly canal. In fact as the grautor had no right to flow, into the Stanly canal, water from any land other than his own, he-could not make the grant to Boomer and Litchfield, except on that, condition precedent, without •subjecting himself to an action for damages by ,the owner of that canal.
2. The second point made by the defendants is, that if the .original grantees, Boomer and Litchfield, were bound by •the covenants on their part, contained in the deed of April, 1855, their assignees, the present defendants, are not.
The view which we take of the iutent and effect of that ■deed renders it unnecessary for us to consider this question. 'Eor if the grant of the easement.was upon a' condition precedent which has ljever been performed, then the original grantees were never seized of it, and of course it never passed to their assignees. Nothing passed to the assignees beyond what their assignors had, which was a right to the easement upon the performance of the prescribed condition ■precedent.
3. The third point is, that if the defendants have no right
to
flow water from their respective lands into the ditch of the plaintiff, to his injury, still the tort, is that of the sevq--yal defendants respectively, for which several actions would lie, and not a single tort committed by all of them jointly, -for which a joint action would lie; and if a joint action will lie, the present verdict is bad in assessing several damages. We regret that we were not furnished with any argument on this point by the counsel on either side, or with a reference to any authorities respecting the practice proper •in such cases. Before our Code of Civil Procedure, the rule •seems to have been, that in an action a,gainst joint trespassers the jury were required to find a joint damage, and if they found several damages against the several- defendants, the plaintiff was entitled to judgment against all of the defendants for thé highest sum found against any one of them, or the verdict would be quashed.
Heydon’s
case, 11 Coke Rep. 5, a. § § 4. 5, (p. 8, vol. 6,) and
Miles v.
Prat, there cited. In
Eliot v.
Allen, 1 Mon., Gran. Scott 18, (50 E. C. L. R.) at was said, that where the acts of the several defendants ■.made but one trespass, the damages must be joint. No .doubt this rule is reasonable when all the trespassers act
upon a common design, arid in aid of each other, although the parts taken by each differ in importance; and it applies-also in criminal cases. But it was early seen that there-might be eases in which its application would be unjust.
In Austen v.
Willward, Cro. Eliz., 860, it was said, “if in trespass against divers,, the one be found guilty in part, and the-others in all, then the damages shall be several.” And this view was acted on in
Rodney v. Strode,
3 Mod. 101; and in
Player v.
Warn, Cro Car. 54. Eor a collection of the Engr lish cases, see Mayne on Damages, pp. 329, 330.
It is unnecessary more particularly to examine the former" law, or to decide what the rule would have' been, before our Code of Procedure. Section 61 of the Code says:- “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, &cand section 248, sub-section 3, says: “ In an action against several defendants the Court may, in its discretion, rendér judgment against one or more of them, leaving the action to-proceed against the others, whenever a several judgment-may be proper.” We will now consider the facts of the* present case -with a view to the application of the above-sections.
All the defendants have an interest in the controversy adverse to the plaintiff. They all claim the easement in contro- • versy, under the samé grant; and the injury to the plaintiff is caused-by the separate action of each of them. They are?, therefore, all properly made defendants under section 61. But' there is no unity of design, and no concert of action among:' them.
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RodmáN, J.
(After stating the facts as above.) Three points are made by the defendants:
1. That inasmuch as Boomer and Litchfield never executed or formally became parties to the deed of April 30th 1855, they were not bound by the conditions and covenants on their part therein contained. It is not denied in the answer, and it is expressly found by the jury, that they accepted the deed, and that their assignees accepted aud used the easement granted in it.
We had occasion to consider this question in
Maynard
v.
Moore,
76 N. C. 158, and it is there said, that a party who accepts a deed containing covenants on his part, is bound to perform them, although he does not' execute the deed as a party. For that, the case of
Finley
v.
Wilson,
4 Zab. (N. J.) 311, is cited. The true reference is 2 Zab. 311. See also on this point
Earle
v.
Mayor of New Brunswick,
38 N. J. 47; 13 Pick. 323; 9 Metc. 396;
In the present case however there is no necessity for resorting to that doctrine.
In the deed under which the defendants claim, the grant of the easement is expressly made conditional upon the acquisition by the grantees, of a right to drain through the Stanly canal, and provision is made for their enlarging that canal iii conjunction with the plaintiff. The deed, after reciting that Boomer and Litchfield owned adjoining lands-
which they could not conveniently drain except through the land of the plaintiff, and that plaintiff had a right to drain his own laud only, through the Stanly canal, and that said plaintiff was willing ‘‘to .grant a privilege therefor on certain •conditions, &c.j” says; “Now
if
said Roomer and Litchfield •shall procure from the owner of said i Stanly) land, a right to •drain or ditch, &c., of sufficient width and compass to discharge and carry off all the water which may be forced, •down'the drains hereinafter granted them through my land, and shall in conjunction with myself, cut out and keep open said canal leading to Wysocking, (the Stanly canal) &c.” “Then this indenture witnesseth,” that said Long grants to .Boomer and his heirs and assigns, au easement ¡to cut into Long’s ditch; and also grants to Litchfield and his heirs and assigns, a similar easement; the said easements to be held as appendages to the several pieces of land then owned By Boomer and Litchfield respectively.
Then the said Boomer and Litchfield severally covenant for themselves and their respective heirs .and assigns, to keep open and in good order “the said ditch,” (meaning, as wé asp.ume, the ditch or ditches authorized to be cut through the land of the plaintiff. The precise meaning of the words is not material in the present action.)
The word “if” is an apt one to -express a condition precedent to the creation of an casement; and the whole language and frame of the deed show that it was the.inteution of the grantor, that the grant should not go into effect, at least, until the grantees had acquired an easement, in the Stanly canal. In fact as the grautor had no right to flow, into the Stanly canal, water from any land other than his own, he-could not make the grant to Boomer and Litchfield, except on that, condition precedent, without •subjecting himself to an action for damages by ,the owner of that canal.
2. The second point made by the defendants is, that if the .original grantees, Boomer and Litchfield, were bound by •the covenants on their part, contained in the deed of April, 1855, their assignees, the present defendants, are not.
The view which we take of the iutent and effect of that ■deed renders it unnecessary for us to consider this question. 'Eor if the grant of the easement.was upon a' condition precedent which has ljever been performed, then the original grantees were never seized of it, and of course it never passed to their assignees. Nothing passed to the assignees beyond what their assignors had, which was a right to the easement upon the performance of the prescribed condition ■precedent.
3. The third point is, that if the defendants have no right
to
flow water from their respective lands into the ditch of the plaintiff, to his injury, still the tort, is that of the sevq--yal defendants respectively, for which several actions would lie, and not a single tort committed by all of them jointly, -for which a joint action would lie; and if a joint action will lie, the present verdict is bad in assessing several damages. We regret that we were not furnished with any argument on this point by the counsel on either side, or with a reference to any authorities respecting the practice proper •in such cases. Before our Code of Civil Procedure, the rule •seems to have been, that in an action a,gainst joint trespassers the jury were required to find a joint damage, and if they found several damages against the several- defendants, the plaintiff was entitled to judgment against all of the defendants for thé highest sum found against any one of them, or the verdict would be quashed.
Heydon’s
case, 11 Coke Rep. 5, a. § § 4. 5, (p. 8, vol. 6,) and
Miles v.
Prat, there cited. In
Eliot v.
Allen, 1 Mon., Gran. Scott 18, (50 E. C. L. R.) at was said, that where the acts of the several defendants ■.made but one trespass, the damages must be joint. No .doubt this rule is reasonable when all the trespassers act
upon a common design, arid in aid of each other, although the parts taken by each differ in importance; and it applies-also in criminal cases. But it was early seen that there-might be eases in which its application would be unjust.
In Austen v.
Willward, Cro. Eliz., 860, it was said, “if in trespass against divers,, the one be found guilty in part, and the-others in all, then the damages shall be several.” And this view was acted on in
Rodney v. Strode,
3 Mod. 101; and in
Player v.
Warn, Cro Car. 54. Eor a collection of the Engr lish cases, see Mayne on Damages, pp. 329, 330.
It is unnecessary more particularly to examine the former" law, or to decide what the rule would have' been, before our Code of Procedure. Section 61 of the Code says:- “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, &cand section 248, sub-section 3, says: “ In an action against several defendants the Court may, in its discretion, rendér judgment against one or more of them, leaving the action to-proceed against the others, whenever a several judgment-may be proper.” We will now consider the facts of the* present case -with a view to the application of the above-sections.
All the defendants have an interest in the controversy adverse to the plaintiff. They all claim the easement in contro- • versy, under the samé grant; and the injury to the plaintiff is caused-by the separate action of each of them. They are?, therefore, all properly made defendants under section 61. But' there is no unity of design, and no concert of action among:' them. The most western of the defendants pours his> water-on his eastern neighbor, and he, in turn, upon the one east of him; and thus, through a comm.on channel, the water of" all of, them passes into the ditch of the plaintiff and causes the injury. While the separate action of each defendant-causes the single injury, the share of each in causing it, is-.separable, and may be accurately measured. It is-,
cestería
paribus,
as they seem to have been here, proportionate to the area which he drains upon the plaintiff. Under these circumstances it'would be unjust and unreasonable to assess joint damages, by which the possessor of ten acres drained would pay as much as the possessor of fifty acres ; and might perhaps be compelled to pay the whole without a right to recover contribution.
Merriweather v.
Nixon, 8 Term Rep. 186.
"We think that under the peculiar circumstances of this-case, the jury were justified in assessing several damages. The Judge erred in dismissing the action.
4. We are bound'to give here such judgment as the Judge below should have given. It has been seen that Dixon. Swindell, one of the defendants, died during the pendency of the action, and that both his administrator and his heirs were made parties defendant, and the jury find damages against the heirs. Clearly there was no cause of action, against them. The personal estate is liable for damages-done by the intestate.
Judgment below reversed, and the plaintiff- will have-judgment here against E. L. Mann, administrator'of Dixon Swindell, for $71.42 ; against Cornelius Swindell for $142.-84; against R. C. Windley for $35.71. He will also have= judgment against these defendants jointly, for costs.
T. E. Swindell and George Credle will go without day,, and each will have judgment against the plaintiff for his-costs.
The'motion for an injunction is refused. The plaintiff has an adequate remedy without it.
Per CueiaM. Judgment accordingly.