Granger, J.
The principles of law which govern this case are simple, and easy of application.
The defendant, through whose premises Franklin Street Brook ran, had a perfect right within his own boundaries to make such a channel for the water as he pleased, so long as no other person was injured by reason of it. The law did [270]*270not concern itself with the question whether it was the old channel, or an entirely new one, or was an open or covered channel, nor whether, if it was a covered one, it was of one kind rather than another. All that the law required of him was such a channel as would carry safely and without injury to others, the waters of the brook. And by the waters of the brook is meant, not merely the ordinary flow of water, but its flow in times of heavy rain, its increase in volume from any ordinary natural cause.
If the defendant had constructed a covered channel that was insufficient in capacity to allow this natural flow of the water, and which from its incapacity in this respect obstructed the stream, causing it to overflow its banks and to run outside of its channel upon the land of the plaintiff, then the defendant, unless relieved by certain other facts in the case, would clearly be liable for whatever damage was done thereby to the property of the plaintiff. And it makes no difference that the covered channel was constructed by the defendant before the plaintiff purchased his premises, nor that the plaintiff purchased his premises of the defendant. The insufficient channel was a nuisance in its first construction, and its maintenance afterwards was the maintenance of a nuisance, which is equivalent in law to the creation of one; while the plaintiff, of whomsoever he purchased, and whensoever, stands as a property owner whose property the law protects from the nuisance.
But the defendant claimed in the court below, and offered evidence in support of his claim, first, that the city of Norwich had, by proceedings under its charter, taken this channel as a city sewer, and that he had ceased to have any right in or control over it at the time the injury complained of was done; and secondly, that the flow of water in the brook for which the channel was found inadequate, was not the ordinary flow, nor even the volume of water increased by natural causes, but was in large part the flow of water and sewage brought into the brook since the covered channel was made, much of which would not otherwise have found its way there, by public sewers and drains constructed by the city, and over [271]*271which lie had no control. The defendant contended therefore that, if there was any liability on the part of any one to the plaintiff, for the injury from the obstruction and overflow of the water, the city of Norwich was alone liable.
To the first point made by the defendant, that the city had taken his channel as a public sewer, the plaintiff replies that the proceedings of the city authorities were not regular and complete, so that the channel had never become a legal public sewer. But the question whether the city had taken possession and control of the channel in question is rather one of fact than of law. If the defendant had surrendered the possession and control of it to the city in the belief that the proceedings of the city were regular and complete, and the city had taken such possession and control in that belief, the defendant would clearly no longer be liable for its insufficiency; in other words he would no longer be maintaining a nuisance. The city alone would bo responsible for any future damage. In the same way the defendant might have voluntarily surrendered the possession and control to the city, without any compulsory proceedings whatever, or with full knowledge of the irregularity and incompleteness of the legal proceedings. It makes no difference how the possession came into the hands of the city, so long as it was actual and legal. On the other hand, if the legal proceedings had been regular and complete so as to vest in the city a perfect legal right at its own pleasure to take possession of the channel for a public sewer, and it had not in fact taken such possession, then, unless in very peculiar circumstances, the liability for injuries thereafter resulting fro"m the insufficiency of the channel would not have passed from the defendant to the city. It is not like the case of a conveyance of the fee of land by deed. There the possession presumptively follows the title. Here the title that was obtained by the city, if any, was a right to a mere easement, involving no presumptive possession. Suppose it had been an easement of a different kind that the city had taken, as for instance, by laying out a public street across the defendant’s premises, taking in the whole of his covered channel. The city would have a perfect right at any time to [272]*272enter and work tlie street. But if tliis should be delayed, and the property remain undisturbed for several months, the city taking no actual possession, the defendant would clearly be liable for the continuance of the nuisance. The premises would have been entirely within his possession and control as much as before the street was laid out. He could take up the covered channel, or, if there had been none, could now make one—thus for the first time creating the nuisance. The question thus becomes one of actual possession and control, and thus a question for the jury. The legal proceedings were of course important as going to show the reason for taking possession oii the part of the city, and to add to the probabilities that it had taken possession, if it were a matter left doubtful by the evidence. . And so far as the regularity or completeness of these proceedings was in question, it was of course a matter for the court to pass upon as one of law, but the question of actual possession and control was none the loss one of fact for the jury. And the court so treated it, submitting to the jury the question whether the channel had in fact passed out of the control of the defendant and into the control of the city. There is no error in this part of the charge.
As to the second point made by the defendant, it seemed to be admitted that the volume of water, at the time of overflow, was considerably increased by the inflow of water and sewage from city drains and sewers above the premises of the defendant, such drains and sewers having been constructed by the city after the defendant had made his covered channel; but the plaintiff - claimed that, independently of this increased flow, the defendant’s channel was of insufficient capacity for the natural demands of the brook. This question was of course one of fact for the jury, and evidence was introduced by both parties in support of their respective claims with regard to it. Upon the argument the counsel for the defendant requested the court to charge the jury that the defendant could not be subjected to damages “on account of the channel becoming insufficient by reason of such increase of water and sewage.”
[273]
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Granger, J.
The principles of law which govern this case are simple, and easy of application.
The defendant, through whose premises Franklin Street Brook ran, had a perfect right within his own boundaries to make such a channel for the water as he pleased, so long as no other person was injured by reason of it. The law did [270]*270not concern itself with the question whether it was the old channel, or an entirely new one, or was an open or covered channel, nor whether, if it was a covered one, it was of one kind rather than another. All that the law required of him was such a channel as would carry safely and without injury to others, the waters of the brook. And by the waters of the brook is meant, not merely the ordinary flow of water, but its flow in times of heavy rain, its increase in volume from any ordinary natural cause.
If the defendant had constructed a covered channel that was insufficient in capacity to allow this natural flow of the water, and which from its incapacity in this respect obstructed the stream, causing it to overflow its banks and to run outside of its channel upon the land of the plaintiff, then the defendant, unless relieved by certain other facts in the case, would clearly be liable for whatever damage was done thereby to the property of the plaintiff. And it makes no difference that the covered channel was constructed by the defendant before the plaintiff purchased his premises, nor that the plaintiff purchased his premises of the defendant. The insufficient channel was a nuisance in its first construction, and its maintenance afterwards was the maintenance of a nuisance, which is equivalent in law to the creation of one; while the plaintiff, of whomsoever he purchased, and whensoever, stands as a property owner whose property the law protects from the nuisance.
But the defendant claimed in the court below, and offered evidence in support of his claim, first, that the city of Norwich had, by proceedings under its charter, taken this channel as a city sewer, and that he had ceased to have any right in or control over it at the time the injury complained of was done; and secondly, that the flow of water in the brook for which the channel was found inadequate, was not the ordinary flow, nor even the volume of water increased by natural causes, but was in large part the flow of water and sewage brought into the brook since the covered channel was made, much of which would not otherwise have found its way there, by public sewers and drains constructed by the city, and over [271]*271which lie had no control. The defendant contended therefore that, if there was any liability on the part of any one to the plaintiff, for the injury from the obstruction and overflow of the water, the city of Norwich was alone liable.
To the first point made by the defendant, that the city had taken his channel as a public sewer, the plaintiff replies that the proceedings of the city authorities were not regular and complete, so that the channel had never become a legal public sewer. But the question whether the city had taken possession and control of the channel in question is rather one of fact than of law. If the defendant had surrendered the possession and control of it to the city in the belief that the proceedings of the city were regular and complete, and the city had taken such possession and control in that belief, the defendant would clearly no longer be liable for its insufficiency; in other words he would no longer be maintaining a nuisance. The city alone would bo responsible for any future damage. In the same way the defendant might have voluntarily surrendered the possession and control to the city, without any compulsory proceedings whatever, or with full knowledge of the irregularity and incompleteness of the legal proceedings. It makes no difference how the possession came into the hands of the city, so long as it was actual and legal. On the other hand, if the legal proceedings had been regular and complete so as to vest in the city a perfect legal right at its own pleasure to take possession of the channel for a public sewer, and it had not in fact taken such possession, then, unless in very peculiar circumstances, the liability for injuries thereafter resulting fro"m the insufficiency of the channel would not have passed from the defendant to the city. It is not like the case of a conveyance of the fee of land by deed. There the possession presumptively follows the title. Here the title that was obtained by the city, if any, was a right to a mere easement, involving no presumptive possession. Suppose it had been an easement of a different kind that the city had taken, as for instance, by laying out a public street across the defendant’s premises, taking in the whole of his covered channel. The city would have a perfect right at any time to [272]*272enter and work tlie street. But if tliis should be delayed, and the property remain undisturbed for several months, the city taking no actual possession, the defendant would clearly be liable for the continuance of the nuisance. The premises would have been entirely within his possession and control as much as before the street was laid out. He could take up the covered channel, or, if there had been none, could now make one—thus for the first time creating the nuisance. The question thus becomes one of actual possession and control, and thus a question for the jury. The legal proceedings were of course important as going to show the reason for taking possession oii the part of the city, and to add to the probabilities that it had taken possession, if it were a matter left doubtful by the evidence. . And so far as the regularity or completeness of these proceedings was in question, it was of course a matter for the court to pass upon as one of law, but the question of actual possession and control was none the loss one of fact for the jury. And the court so treated it, submitting to the jury the question whether the channel had in fact passed out of the control of the defendant and into the control of the city. There is no error in this part of the charge.
As to the second point made by the defendant, it seemed to be admitted that the volume of water, at the time of overflow, was considerably increased by the inflow of water and sewage from city drains and sewers above the premises of the defendant, such drains and sewers having been constructed by the city after the defendant had made his covered channel; but the plaintiff - claimed that, independently of this increased flow, the defendant’s channel was of insufficient capacity for the natural demands of the brook. This question was of course one of fact for the jury, and evidence was introduced by both parties in support of their respective claims with regard to it. Upon the argument the counsel for the defendant requested the court to charge the jury that the defendant could not be subjected to damages “on account of the channel becoming insufficient by reason of such increase of water and sewage.”
[273]*273The court however, while laying down the law correctly and in accordance with the defendant’s claim, with regard to the liability of the city and the non-liability of the defendant, if the city had actually taken possession and control of the defendant’s channel as a public sewer, failed to properly discriminate between the damage from the natural flow of the water for which the defendant, if the city had not taken possession, would be liable, and the damage from the increased volume and overflow caused by the inflow from the city drains, for which the city alone would in any event be liable; and so presented the case to the jury that they may have drawn the inference that the defendant, if in control of the channel, was liable for the entire overflow, and for the whole damage done. And this inference might easily have been drawn by them from the judge’s instruction that the defendant and the city might be jointly liable. The charge of the court upon this point was as follows:—“Although the city might be liable for the damages complained of in the second count, it does not follow that the defendant is not also liable. This count sounds in tort, and tort-feasors are jointly and severally liable. If the defendant wrongfully continued that which the plaintiff claims to have been a nuisance and to have caused him an injury, he is not exempt from liability although the city participated in the wrong.”
The jury can hardly have failed to understand from this that the defendant might be liable for the whole damage, even though a great part of it was caused by the increase of water from the city’s drains and sewers; and they may have understood that he was so liable even if his covered channel was entirely adequate to the needs of .the natural flow of water and was insufficient merely for this artificial increase over which he had no control.
And the court was clearly wrong in the principle laid down that the defendant and the city might be regarded as joint tort-feasors. Even supposing the defendant to be liable for so much damage as was caused by the inadequacy of his channel for the accommodation of the natural flow of the brook, and the city to be liable for that part of the damage [274]*274caused by tlie artificial increase in the flow, yet they can not upon any principle be regarded as jointly liable. The defendant, if liable at all, is liable because his insufficient channel was a nuisance; the city, if liable, is liable for pouring into the stream a great quantity of water and sewage for which there was no sufficient channel. It made no difference as to the city whether the channel was insufficient from an artificial cause or a natural one. To the city, in this part of the case, the defendant’s covered channel was precisely what a narrow gorge in the rocks would have been—ample for the natural flow, wholly insufficient for the artificially increased flow. The torts of the defendant and the city have in law nothing in common. It is not enough to make torts joint that the acts constituting them stand even in immediate juxtaposition, both in time and place. There must be a oneness of act. Two men with their carts may enter upon my land and each dig and carry away my soil. Yet if they are not acting in concert there are two distinct torts and not a joint one, even though they dig from the same pit and at the same time. Here there is not even a juxtaposition of the wrongful acts, the one being the maintenance of an insufficient channel by the defendant, the other the letting in of an increased volume of water and sewage from artificial drains and sewers. The fact that the effects of their several wrongful acts are produced at the same time and place can not affect the question.
It may be very difficult for a jury to determine just how much damage the defendant is liable for and how much should be left for the city to answer for; but this is no more difficult of ascertainment than many questions which juries are called upon to decide. They must use their best judgment, and make their result, if not an absolutely accurate one, an approximation to accuracy. And this is the best that human tribunals can do in many cases. If the plaintiff is entitled to damages and the defendant liable for them, the one is not to be denied all damages, nor the other loaded with damages to which he is not legally liable, simply because the exact ascertainment of the proper amount is á matter of practical difficulty.
[275]*275The defendant has added to his motion for a new trial a motion in arrest of judgment, on the ground of a misjoinder of counts. The first count is for a breach of contract, the second for a tort. It is clear that counts in contract and in tort will not lie together at common law, and the act of 1875 which authorizes a joinder of them, limits it to cases where the counts are for the same cause of action. Here they are clearly not for the same cause of action, and it does not help the matter that they are alleged to be so. And a misjoinder of counts can be taken advantage of by a motion in arrest of judgment. Phelps v. Hurd, 31 Conn., 445. We think however that the declaration that can be held insufficient for such a cause on a motion in arrest, must be one on which the judgment sought to be arrested is based. Here the jury found a verdict for the plaintiff upon the second count only. This was virtually a verdict for the defendant on the first count. Indeed it appears that the first count was not relied upon by the plaintiff on the trial although not formally withdrawn. This perhaps would not be sufficient of itself, and clearly would not if the jury had rendered a general verdict. We rest our opinion wholly on the fact that this count does not in any manner subtend the judgment. There would seem to be no good reason why in such a case it should carry an infirmity into the judgment. For all practical purposes it has disappeared. So far as the judgment is concerned, it is
as if this count had never existed. This view is sustained by the authorities. 1 Chitty PL, 229; Kightly v. Birch, 2 Maule & Selw., 533; Eddowes v. Hopkins, 1 Doug., 376; Williams v. Breedon, 1 Bos. & Pul., 330; Hancock v. Haywood, 3 T. R., 433; Tate v. Whiting, 11 Mod., 196; Brill v. Neale, 1 Chitty R., 619; Harris v. Davis, id., 626, note; Lusk v. Hastings, 19 Wend., 629.
A new trial must be granted for the errors in the charge of the court.
n this opinion the other judges concurred.