Opinion of the Court.
The practice of the Court has ever been to sustain actions founded on tort against one or more defendants.
There is something singular in the present action, as exhibited in evidence on the trial.
The plaintiff has a farm bounded on a river. Two dams have been erected in the stream, which caused the waters to overflow the plaintiff’s lands, by which he has been materially injured. The plaintiff has brought Ms action against the separate owners of these dams. Both dams must have been erected be*432fore any damage could have resulted. It is contended, that the two owners could not be joined in the same writ, or if they were they could not be distinguished in the verdict.
Samuel Miller and Amos Marsh, for plaintiff! JDaniel Chipman and Josias Smith, for defendant..If the plaintiff had brought his action against one of the owners, his counsel would have argued, that his dam alone did not cause the injury, and so it might have appeared to the Jury.
If he had brought his action against him who erected the second dam, by which the more immediate injury was occasioned, he would say, If the other' dam had not been erected, mine would have occasioned no damage. Why did you not combine in the action him who made the first obstruction in the river ? If one is responsible, both are; and he who received equal benefit from the dams, ought equally to contribute in repairing the injury caused by them.
The Court therefore consider, that the action will lie against both; and that the Jury were the proper board, having the whole subject before them, to decide where the blame lay.
It appears to tlie Court, that substantial justice is done by the verdict.
Therefore let the rule be discharged.