Hoffman v. Tuolumne County Water Company. apparently formed a solid and secure foundation for the timbers of the dam, and the same was constructed properly in other respects, then the placing the timbers upon such foundation, though it afterwards proved insecure, was not negligence in law." Which instruction the Court refused to give, and defendants excepted. The jury returned a verdict for the plaintiffs, and assessed the damages at $1000, and judgment was entered thereon. Defendants moved for a new trial, which was denied, and they appealed to this Court. Barber for Appellants. The complaint contains a single count, and sets forth that "defendants' said reservoir, by reason of some defect in its construction, insufficiency for the purposes for which it was constructed, or carelessness and mismanagement on the part of said defendants, broke and flooded plaintiffs' claim." To this complaint a demurrer was interposed, on the ground that several causes of action had been improperly united therein without being separately stated, to wit: 1. Defect in the construction of the reservoir. 2. Carelessness and mismanagement on the part of plaintiffs. These are two distinct causes of action, and by section sixtyfour of the Practice Act, "shall be separately stated." These distinct causes of action having been joined in one count, the complaint is demurrable, under section forty, subdivision five of the Practice Act, that "several causes of action have been improperly united." This question has been already decided under the New York Code. Durkee v. Saratoga R. R., 4 Howard, 226; 2 Code Rep., 145; Getty v. Hudson R. R. Co., 8 Howard, 177; 9 Howard, 98, 342. That these allegations constitute distinct causes of action is easily ascertained. Plaintiffs, on the trial, might move either negligence in the construction of the dam, which would constitute one cause of action, or mismanagement or carelessness in attending to it, which would constitute another, and in either case he would recover; showing clearly that the allegations constitute separate and distinct causes of action, on proving either of which, plaintiffs would have their remedy, without reference to the other. Take another test-suppose plaintiff's had declared for the breakage of the reservoir, solely on account of defective construction, and on the trial it had been proven that the damage did not arise from any defective construction of the dam, but from mismanagement on the part of those attending it, could plaintiffs, under that evidence, have recovered, when they alleged only a defective construction as the cause of damage, and vice Fitzimmons v. Inglis, 5 Taunton, 534. versa. Hoffman v. Tuolumne County Water Company. Defendants had the right to have each issue presented singly. Plaintiffs have no right to say in one count, you are guilty of constructing your dam improperly; or, if it is constructed properly, you are guilty of carelessness in its management. He can not say in the same count you damaged me thus, or thus; such a statement of different causes of action is allowed by no rules of pleading. The uniting of several causes of action in one count was always good ground of demurrer. The Court, in their second instruction, say: "That if they believe that the dam was improperly or inartificially constructed, or that defendants could have constructed it in a better or more substantial manner, so as to prevent its breaking, then they were liable." We submit that both branches of this charge were erroneous: 1. It mattered not at all whether the dam was "inartificially" constructed the question was, whether it was securely constructed; if so, it was a question of no importance whether its construction was "inartificially" or not; "inartificially" is an obscure term, of great latitude, and tending to lead the jury from the true issue. A fort might be very inartificially constructed, yet protect the troops within as well as one constructed on the most "artificial" principles. No brief in the record for Respondents. BALDWIN, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring. At the first presentation of the questions on the demurrer to the complaint, we were inclined to think it well taken; but on reflection, we think that it is not. The complaint is for negligence, by defendants insufficiently building a dam across a watercourse, or carelessness and mismanagement on the part of the defendants, whereby the dam broke and injured the miningclaims of plaintiffs below. It will be seen that the gravamen of the action is not for building the dam. That they had a right to do, and it seems to be conceded that, if the work had been constructed as designed, no injury would have followed. Whether this negligence arose from the want of care in constructing the dam, or want of care in letting off the water, we do not think sufficiently material, under our system of pleading, to require separate counts. The main thing is the neglect of the defendants in respect to their own property, and while it is important to have the pleadings drawn with precision, it would probably lead to more trouble than it would save to require so much exactness as is claimed in this case. We presume if a bailee were charged with negligence in regard to an article bailed, that it would not be necessary to state in different counts several acts Hoffman v. Tuolumne County Water Company. of negligence, as not keeping the property secure, losing it, and the like. The demurrer, therefore, was properly overruled. The main question is on the propriety of giving the second instruction, at the instance of the plaintiff, in these words: "If the jury believe that the dam was improperly or inartificially constructed, or that defendants could have constructed it in a better or more substantial manner, so as to prevent its breaking, then they were liable." Our decisions upon the subject of riparian and mining rights, have gone upon the theory that the appropriator was the owner. The question here is not whether the ditch-owner has the right to build a dam, the natural consequence of the construction of which is to injure a mining-claim, or the adjacent property of another-at any rate, without making compensation to the person so injured. This case concedes that the mere fact of construction did not produce the injury; but that the negligent or improper exercise of a right, lawful when properly exercised, has caused the damage, and given the cause of action. The general rule is, that every man may do as he chooses with his own property, provided he does not injure another's. But there is another rule as well established, which is, that a man must so use his own property as not to injure his neighbor's. This last rule, however, does not make a man responsible for every injury which may arise to another from the use which the first may make of his property. It would be an intolerable hardship to hold a man responsible for unavoidable accidents which may occur to his property by fires or casualties, or acts beyond his control, though others are likewise injured. The degree of negligence which will subject the owner to liability to third persons in such cases has been settled by repeated decisions. In Angell on Water-Courses, (380, § 336,) it is said: "The degree of care which a party who constructs a dam across a stream of water is bound to use, is in proportion to the extent of the injury which will be likely to result to third persons, provided it should prove insufficient. It is not enough that the dam is sufficient to resist ordinary floods; for if the stream is occasionally subject to great freshets, those must likewise be guarded against; and the measure of care required in such cases is that which a discreet person would use if the whole risk were his own. In a case where the plaintiff gave evidence that the defendant was the possessor of a saw-mill and dam above the plaintiff's works, and, by means of the dam, had raised a large body of water, about a mile in length, and varying in width from a few rods to half a mile; and that the dam gave way and let down the whole body of water upon the plaintiff's works below, and which swept away and destroyed his property to a large amount; and at the time the dam gave way there had been n unusual fall of rain, the Court held as follows: The defen was subject to the maxim, Sic utere tuo ut alienum non læd Sharp v. His Creditors. to comply with the requisition of the common law, it was the duty of the defendant to have used ordinary care and diligence in making repairs to his dam, or in drawing off the water from his pond, to prevent injuries to the plaintiff's furnace. If the defendant did not use this care and diligence, he was guilty of negligence, and liable for consequential damages; but he was not liable for inevitable accident.'" See, also, Bagley v. Mayor, etc., of New York, (3 Hill, 531;) Mayor, etc., of New York, v. Bailey, (3 Denio, 433;) Lapham v. Curtis, (5 Vermont, 371.) And if the dam were to break without any negligence, or through inevitable accident, it would be the duty of the party to repair it and stop the injury as soon as practicable. Applying these principles to the instructions, it will be seen. that the charge is too broad. It will be perceived that the question is not what the plaintiffs could have done, but what discreet and prudent men should do, or ordinarily do, in such cases, where their own interests are to be affected, and all the risk their own. We are not satisfied that the Court erred in refusing to give the defendants' charge; at least without some qualification; for the mere fact that the rock presented outwardly a solid appearance, etc., does not necessarily show due diligence in making it a foundation, since many other circumstances, such as the knowledge by the defendants, or the builder, of the character or qualities of such rock, or a knowledge of it from testing it, etc., might still show it was unsafe for this purpose. But it is not necessary to express a decided opinion upon this point, as we have indicated the correct rule of liability upon which the case may be properly put to the jury upon another trial. Judgment reversed, and cause remanded. SHARP v. HIS CREDITORS. On a petition for a discharge from the debts of the petitioner, under the Insolvent Act, it is unnecessary for the petitioner to allege that his debts were created in this State. The Courts do not owe their jurisdiction, in insolvency cases, to an averment in the petion that the debts of the insolvent arose in this State. APPEAL from the District Court of the Eighth Judicial District, County of Siskiyou. The facts appear in the opinion of the Court. J. A. Fletcher for Appellant. Williams v. Covillaud and Murray. BALDWIN, J. delivered the opinion of the Court-TERRY, C. J., concurring. In this case, the petitioner filed his petition in the usual form, in the District Court of Siskiyou county, praying to be discharged from his debts. The proceedings on his part seem to be regular. The creditors filed a demurrer to the petition. The demurrer sets out, as cause of opposition, the general objection that there are not facts sufficient to entitle the petitioner to his discharge, and more specifically that the debts of petitioner are not shown to have been created in this State. The Court sustained the demurrer, and dismissed the petition, with costs. Without passing upon the question of the regularity or propriety of this proceeding on the part of the creditors, it seems to us that the Court erred in sustaining the demurrer. The facts are sufficient, and the Court does not owe its jurisdiction to an averment on the face of the petition that the debts arose in this State. What the effect of a discharge may be upon debts made in another State, it is not necessary to determine. Judgment reversed, and cause remanded. WILLIAMS v. COVILLAUD AND MURRAY. Mere extension of time to the maker of a promissory note, is not sufficient to discharge a surety, or endorser. To operate as such discharge, the agreement with the maker must be founded upon a valuable consideration, and be such as will suspend the right of action against the maker. Where the holder of a note, after its maturity obtained from a stranger to the note a guaranty of its payment within sixty days: Held, that there was no presumption of law that the guaranty was taken for the benefit of the maker, or that it extended to him the time of payment. Such a guaranty is an independent contract, which does not suspend any right of action of the holder of the note against its maker. APPEAL from the District Court of the Tenth Judicial District, County of Yuba. This was an action on a promissory note against the defendant Robert J. Murray, as maker, and Charles Covillaud, as endorser, brought under section fifteen of the Practice Act. The defendant Murray suffered default, but the defendant Covillaud filed an answer, and defended the action. On the trial, the plaintiff gave in evidence the following promissory note, the genuineness of the signatures of the maker and endorser being admitted: "$2500 00. MARYSVILLE, July 4, 1856. "On or before the fourth day of September next, I promise to |