30 rmnmnn Rmrosrmk.
distinction between law and `equity with reference to the joinder and
non-joinder of parties in the same proceeding. The very object of
establishing courts of equity was to furnisha tribunal adapted to do
complete justice in complex cases, often involving many parties, in
which the courts of law, by reason of their restricted powers result-
ing from their modes of proceeding, could not aiiord adequate relief.
No inconvenience or additional costs can result to the several defend-
ants in this suit from being joined with others, who also contribute
to the same nuisance by originally independent action—action in its
inception and first stages several, but ultimately, co·operating to
produce the nuisance. On the contrary, it is convenient to dispose
of it in one case, and the costs are diminished to each individual
rather than increased by a single suit. The costs can be apportioned
in equity, if proper, and the administration of justice is thus facili-
tated. In fact it is the only adequate mode of proceeding in cases
like this. In my judgment, the decision in Keyes' Case is not in accord-
ance with the principles of equity jurisprudence in England, or gener-
ally, inthe United States, as established by the authorities. I also re-
gard the case as substantially overruled by the present supreme court
in the subsequent case of Hillman v. Newington, 57 Gal. 56. It is true
the Case of Keyes was not mentioned by the court in its opinion in the
latter case, but it was the principal case cited and relied on by counsel.
The Case of Keyes could not have been overlooked by the court,
and there does not appear to have been any attempt to distinguish it,
and it seems to me to be utterly inconsistent with the decision ii-
Hitlmcn v. Newington, and to have been in eifect ‘overruled by th:
latter case. The difference between these cases is only in circum-
stance, not in principle. The action in the latter case was for di-
version of water by several defendants, each acting independently
It was both an action at law for damages, by a party entitled to :
specihc amount of water, and also a suit in equity to restrain the di-
version complained of. The point most strongly pressed in the su-
preme court was the alleged misjoinder. The court says:
·‘Each of them (the defendants) diverts some of the water. And the ag
gregate reduces the volume below the amount to which the plaintiif is enti-
tled, although the amount diverted by any one would not. It is quite evi-
dent, therefore, that without unity, or concert of action, no wrong could be
t committed; and we think that, in such a case, all who act must be held to act
jointly. * * * It does not seem to us that the defendant’s answer, that
each one of them is acting independently of every other one, shows that the
wrong complained of is not the result of their joint action; and if it does not,
the answer iu that respect is insutlicient to constitute a defense."