ClabicsoN, J.
The defendant, International Shoe Company, contends: “It clearly appears from the allegations of the complaint that the three defendants herein are not joint tort-feasors, but, if tort-feasors at all, that they acted independently, without concert or collusion and not
in pursuit of any common design to pollute tbe waters of Hunting Creek. One — the town of Morganton — in the effort to discharge its corporate powers, saw fit to discharge the contents of its sewers into the stream; the other — the Western Carolina Power Company — in the exercise of its corporate powers and duties, saw fit to erect a dam in the Catawba River, while the petitioner, the International Shoe Company, saw fit to empty its vats into the stream; but these acts were each and all separate, independent and distinct acts on the part of each of these defendants, and for the acts of one of the defendants the other defendants are in no way liable, for no community of interest exists between them, no relation of master and servant, of principal and agent, and none is alleged to exist.- . . . The three alleged causes of action asserted against the three defendants are separate, distinct and independent of each other, and the ■ controversy between the plaintiffs and the petitioner constitutes a separate, severable controversy wholly between citizens of different states, the solution of which is in no way dependent or conditioned upon the other two causes of action set up in the complaint and the cause should, therefore, have been removed.”
On the other hand, plaintiffs contend: “It is apparent from the complaint that plaintiffs are not seeking to recover against defendants in three separate causes of action. It is true that they complain of the separate wrongful acts of defendants, namely, that the shoe company and its predecessor for a number of years prior to the institution of this action, had emptied its refuse matter into the stream, and was still doing so; that the Town had for a number of years emptied its sewage into the stream and was still doing so; and that the.power company had lately built a dam across the stream and had backed up the foul waters upon the plaintiffs’ land. But while plaintiffs complain of these separate wrongs, they do not ask that each wrong be taken as a separate cause of action nor ask for separate damages therefor. The truth is, as shown by the complaint, that the plaintiffs had endured for a number of years two distinct past wrongs committed by the shoe company and the town, because each of said wrongs, prior to the damming up of the stream, was a minor and less grievous wrong than the final great and unendurable wrong brought about and produced' by a combination of the three unlawful acts of the three defendants acting in constructive, if not actual, notice of the wrongful and unlawful act of each other. And while the former acts of the town and the shoe company were invasions of the plaintiffs’ rights, and might have been the subject of litigation for years past, and while the plaintiffs properly complain of them in their instant action in order that they may set up and differentiate the later wrong, which they elect as their cause of action, namely, the creation of a nuisance by the three defendants, they do not in their com
plaint ask for nor do they desire damages for injuries prior, to the time when the nuisance, caused by the combined unlawful acts of the three defendants, was effected and established. Plaintiffs assert and specify their cause of action in the following unmistakable language: ‘The unlawful and wrongful acts of the three aforesaid defendants, singly and jointly, contributing to and forming a dangerous and destructive nuisance in said stream, to the great impairment of the value of the property of plaintiffs and to the destruction of the peace and' safety in the .use of said property by plaintiffs for human habitation.’ To the same intent and purpose, namely, to the assertion of the claim for present and future damages for-a permanent and continuing wrong, plaintiffs say: ‘That by reason of the separate and combined unlawful and wrongful acts of the defendants, as aforesaid, the plaintiffs have sustained special and substantial injuries of a permanent- and continuing kind in the use and occupancy of their said lands,’ etc.”
The contention of the International Shoe Company is supported by authorities in some jurisdictions, while others are to the contrary. In many eases of this kind it has been held to make parties joint tort-feasors there must be a common concert of action, design or purpose. In the instant case this may be shown from the result, sequence and consequences of the independent acts. If parties, although acting independently know, or have reasonable ground to believe, that their independent acts combining with the independent acts of others will create a result that will become a nuisance and they do so causing damage, they become as it were joint wrongdoers
ah initio,
and are liable as joint tort-feasors. Where all have knowledge of the independent acts that create the result and continue the independent acts with knowledge, this
ipso facto
creates a concert of action and makes a common design or purpose. Any other position, from the facts and circumstances of the case, would make plaintiffs practically remediless, although there is a nuisance which all jointly concurred in and contributed to, that is alleged made the plaintiffs’ land valueless, and but for such joinder the injury would not have occurred.
The term “nuisance” means literally annoyance — anything which works hurt, inconvenience or damage or which essentially interferes with the enjoyment of life or property. 29 Cyc., L. & P., 1152.
The International Shoe Company, or the town of Morganton,
if riparian owners,
had a right to use Hunting Creek for any purpose which it cán be beneficially applied, but in doing so they have no right to inflict material or substantial injury upon those below them.
Cook v. Mebane,
191 N. C., 4. The same right is given the Western' Carolina Power Company in building its dam — not to inflict material or substantial injury to those above it. This is well settled law.
It is a matter that can be reasonably inferred from tbe record that tbe town of Morganton and tbe International Sboe Company, while emptying its filth in Hunting Creek, knew, or in tbe use of due care ought to have known, that the Western Carolina Power Company was damming up the Catawba River and there was no outlet for the filth, and that sooner or later it would tend to create a nuisance .or a result which might be reasonably anticipated. With this knowledge, it continued to empty the filth into the creek. They all knew the result and consequences of their acts and continued, after knowledge — they became joint tort-feasors.
26 R. C. L., p. 764, says: “There is a class of cases in which the defendants are jointly and severally liable, although they are several ,and not joint tort-feasors, as where there is no concert of action or unity of purpose, but the acts are concurrent as to place and the time and unite in setting in operation a single destructive and dangerous force which produced the injury. There is also another class of cases in which the defendants are jointly and severally liable, although they are not joint tort-feasors.
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ClabicsoN, J.
The defendant, International Shoe Company, contends: “It clearly appears from the allegations of the complaint that the three defendants herein are not joint tort-feasors, but, if tort-feasors at all, that they acted independently, without concert or collusion and not
in pursuit of any common design to pollute tbe waters of Hunting Creek. One — the town of Morganton — in the effort to discharge its corporate powers, saw fit to discharge the contents of its sewers into the stream; the other — the Western Carolina Power Company — in the exercise of its corporate powers and duties, saw fit to erect a dam in the Catawba River, while the petitioner, the International Shoe Company, saw fit to empty its vats into the stream; but these acts were each and all separate, independent and distinct acts on the part of each of these defendants, and for the acts of one of the defendants the other defendants are in no way liable, for no community of interest exists between them, no relation of master and servant, of principal and agent, and none is alleged to exist.- . . . The three alleged causes of action asserted against the three defendants are separate, distinct and independent of each other, and the ■ controversy between the plaintiffs and the petitioner constitutes a separate, severable controversy wholly between citizens of different states, the solution of which is in no way dependent or conditioned upon the other two causes of action set up in the complaint and the cause should, therefore, have been removed.”
On the other hand, plaintiffs contend: “It is apparent from the complaint that plaintiffs are not seeking to recover against defendants in three separate causes of action. It is true that they complain of the separate wrongful acts of defendants, namely, that the shoe company and its predecessor for a number of years prior to the institution of this action, had emptied its refuse matter into the stream, and was still doing so; that the Town had for a number of years emptied its sewage into the stream and was still doing so; and that the.power company had lately built a dam across the stream and had backed up the foul waters upon the plaintiffs’ land. But while plaintiffs complain of these separate wrongs, they do not ask that each wrong be taken as a separate cause of action nor ask for separate damages therefor. The truth is, as shown by the complaint, that the plaintiffs had endured for a number of years two distinct past wrongs committed by the shoe company and the town, because each of said wrongs, prior to the damming up of the stream, was a minor and less grievous wrong than the final great and unendurable wrong brought about and produced' by a combination of the three unlawful acts of the three defendants acting in constructive, if not actual, notice of the wrongful and unlawful act of each other. And while the former acts of the town and the shoe company were invasions of the plaintiffs’ rights, and might have been the subject of litigation for years past, and while the plaintiffs properly complain of them in their instant action in order that they may set up and differentiate the later wrong, which they elect as their cause of action, namely, the creation of a nuisance by the three defendants, they do not in their com
plaint ask for nor do they desire damages for injuries prior, to the time when the nuisance, caused by the combined unlawful acts of the three defendants, was effected and established. Plaintiffs assert and specify their cause of action in the following unmistakable language: ‘The unlawful and wrongful acts of the three aforesaid defendants, singly and jointly, contributing to and forming a dangerous and destructive nuisance in said stream, to the great impairment of the value of the property of plaintiffs and to the destruction of the peace and' safety in the .use of said property by plaintiffs for human habitation.’ To the same intent and purpose, namely, to the assertion of the claim for present and future damages for-a permanent and continuing wrong, plaintiffs say: ‘That by reason of the separate and combined unlawful and wrongful acts of the defendants, as aforesaid, the plaintiffs have sustained special and substantial injuries of a permanent- and continuing kind in the use and occupancy of their said lands,’ etc.”
The contention of the International Shoe Company is supported by authorities in some jurisdictions, while others are to the contrary. In many eases of this kind it has been held to make parties joint tort-feasors there must be a common concert of action, design or purpose. In the instant case this may be shown from the result, sequence and consequences of the independent acts. If parties, although acting independently know, or have reasonable ground to believe, that their independent acts combining with the independent acts of others will create a result that will become a nuisance and they do so causing damage, they become as it were joint wrongdoers
ah initio,
and are liable as joint tort-feasors. Where all have knowledge of the independent acts that create the result and continue the independent acts with knowledge, this
ipso facto
creates a concert of action and makes a common design or purpose. Any other position, from the facts and circumstances of the case, would make plaintiffs practically remediless, although there is a nuisance which all jointly concurred in and contributed to, that is alleged made the plaintiffs’ land valueless, and but for such joinder the injury would not have occurred.
The term “nuisance” means literally annoyance — anything which works hurt, inconvenience or damage or which essentially interferes with the enjoyment of life or property. 29 Cyc., L. & P., 1152.
The International Shoe Company, or the town of Morganton,
if riparian owners,
had a right to use Hunting Creek for any purpose which it cán be beneficially applied, but in doing so they have no right to inflict material or substantial injury upon those below them.
Cook v. Mebane,
191 N. C., 4. The same right is given the Western' Carolina Power Company in building its dam — not to inflict material or substantial injury to those above it. This is well settled law.
It is a matter that can be reasonably inferred from tbe record that tbe town of Morganton and tbe International Sboe Company, while emptying its filth in Hunting Creek, knew, or in tbe use of due care ought to have known, that the Western Carolina Power Company was damming up the Catawba River and there was no outlet for the filth, and that sooner or later it would tend to create a nuisance .or a result which might be reasonably anticipated. With this knowledge, it continued to empty the filth into the creek. They all knew the result and consequences of their acts and continued, after knowledge — they became joint tort-feasors.
26 R. C. L., p. 764, says: “There is a class of cases in which the defendants are jointly and severally liable, although they are several ,and not joint tort-feasors, as where there is no concert of action or unity of purpose, but the acts are concurrent as to place and the time and unite in setting in operation a single destructive and dangerous force which produced the injury. There is also another class of cases in which the defendants are jointly and severally liable, although they are not joint tort-feasors.
If their acts are separate and distinct as to place and time, hut culminate in proditcing a public nuisance which injures the person or property of another, they are jointly and severally liable .” Bunker Mill & Sullivan Mining, etc., Co. v. Polak,
7 Fed. Rep. (2d series), p. 583;
Hillman v. Newington,
57 Cal., 56;
McDaniel v. City of Cherryville,
91 Kan., 40. The decisions in the different states are carefully annotated in
Farley v. Crystal Coal & Coke Co.
(West Va.), 9 A. L. R., 933.
Cooley on Torts (3 ed.), p. 246-7, says: “In respect to negligent injuries, there is considerable difference of opinion as to what constitutes joint liability. No comprehensive general rule can be formulated which will harmonize all the authorities. The authorities are, perhaps, not agreed beyond this, but where two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability. .The weight of authority will, we think, support the more general proposition, that, where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concert action.
The International Shoe Company says in its brief: “If we are correct in our conclusions that the defendants are not joint tort-feasors, then it is clear that the controversy between the plaintiffs and the International Shoe Company is a separable controversy from that between the plaintiffs and the other defendants herein, the decision of which is
in no way dependent npon or involved in the controversy between the other parties, and that the cause is a removable cause.”
We do not think the action a separable controversy. The International Shoe Company was a joint tort-feasor and was an indispensable necessary party to the action.
Morganton v. Hutton,
187 N. C., 756;
Bank v. Hester,
188 N. C., 71.
In
Timber Co. v. Ins. Co.,
190 N. C., p. 803, it is held: “If the defendant, or defendants, who seek to remove, are jointly liable, either in tort
(Ry. Co. v. Dowell,
229 U. S., 102;
McAllister v. R. R. Co.,
243 U. S., 302), or in contract
(R. R. v. Ide,
114 U. S., 52;
Pirie v. Tvedt,
115 U. S., 41;
Core v. Vinal,
117 U. S., 347;
Sloane v. Anderson,
117 U. S., 275), the requisite separability does not exist. . . . (p. 804) A joint tort is not separable,” and cases cited.
Mr. Justice Sanford,
of the Supreme Court of the U. S., in
Hay v. The May Dept. Stores Co. and Wm. McCormick,
opinion delivered 24 May, 1926, citing numerous authorities, says: “It is well settled by the decisions of this Court, that an action brought in a State court against two defendants jointly, in which the plaintiff states a case of joint liability arising out of the concurrent negligence of the defendants, does not present a separable controversy authorizing the removal of the cause to a Federal Court, even though the plaintiff might have sued the defendants separately; the allegations of the complaint being decisive as to the nature of the controversy in the absence of a showing that one of the defendants
ivas fraudulently joined for the purpose of preventing the removal."
From a careful review of the case the judgment of the court below is
Affirmed.