rehearing">

On Rehearing

By the Court,

NORCROSS, C. J.:

This case was heretofore determined on the appeal from the judgment. A rehearing was granted because the court inadvertently overlooked the fact that counsel had stipulated for diminution of the record so as to enable the court to pass on questions raised upon the appeal from the order denying defendant’s motion for a new trial. No attack is made upon the correctness of the views expressed in the former opinion.

[1] It is contended by counsel for the appellant that the decree granting an injunction against the appellant "from causing, permitting and suffering the waste water from said section 15 and the south half of section 1, T. 18 N, R. 20 E, to flow over, into, and upon the plaintiff’s land situate in section 3, T. 18 N, R. 20 E,” should be set aside. It is urged that this portion of the decree should be vacated for the reason that the court found that other persons who were not made parties to the action contributed to the damage done to plaintiff’s lands in section 3 by permitting waste water to flow thereon, and that these other persons were necessary parties to the suit. The court found that the lands of plaintiff in section 3 were damaged by waste water from the lands of defendant situate in section 15 and the south half of section 10, but refused to award any judgment for damages *561against defendant for the reason that it was impossible to determine what portion of the damage was occasioned by waste water from defendant’s lands. We are of the opinion that the decree granting the injunction against the defendant permitting waste water to flow from his lands above mentioned upon the lands of plaintiff is not invalid for want of other necessary parties. It is not contended that the defendant and the other alleged necessary parties were acting jointly in occasioning the damages in question. Where several parties, acting independently, contribute to an injury, the party injured may proceed against the parties contributing to the injury severally.

[2] It is further contended that the decree should be set aside because it appears from the evidence that one George W. Mapes is the owner of the north half of section 10 and that, in order for waste water to reach the lands of plaintiff, it must first pass over the lands of the said Mapes. It is not contended that the evidence discloses that Mapes in any way made use of the waste water from section 15 and the south half of section 10 upon the north half of section 10 before it passed upon the lands of plaintiff in the south half of section 3. The fact that waste water from defendant’s lands flowed without interruption across the lands of a third party would not, we think, affect the right of plaintiff to enjoin defendant from flowing such waste water upon his lands. If it were a fact that the owner of the north half of section 10 appropriated the waste, water of defendant to his own use, and applied the same in the irrigation of land in the north half of section 10, defendant would not be liable for damages, and the injunction could not be enforced against him for the reason that an intervening party had appropriated such waste water to his own use, and such intervening party alone would be liable in damages to the plaintiff, or subject to injunction for such flow.

The judgment heretofore pronounced in the former opinion and decision of this court will stand without modification.

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