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By the Court,

Lewis, J.

This action is brought to recover the sum of nine thousand dollars, in which amount the plaintiff alleges he has been damaged by reason of the careless and negligent driving of logs, lumber, and wood down the Carson River, by the defendants. It appears from the complaint that the plaintiff is the owner of a farm in the county of Douglas, through which the river flows; that in the summer of the year 1867 the defendants were engaged in driving or floating timber and wood down the stream, and that whilst thus engaged it is charged that they “ so carelessly and negligently conducted said business of floating and running said logs, wood, and other lumber down the said'river, above, below, and through the plaintiffs land,” that jams were formed which obstructed the flow of water, occasioned it to rise to a great height, so that the plaintiff’s land was overflowed, and large quantities of chips, bark, mud, sand, and other ^sediment were deposited thereon, whereby the land was greatly injured and depreciated in value. It is also alleged that in consequence of such overflowing the plaintiff’s crops, which were then growing, were entirely destroyed.

It is further alleged that by reason of such careless and negligent *555driving of such' wood, timber, and lumber, a certain channel of the river was filled up, so that the water which flowed through it, and which had been used by the plaintiff for the purpose of irrigation, was diverted therefrom entirely,‘thereby damaging him in the sum of one thousand dollars.

The defendants filed an answer to this complaint in which, before pleading to the merits, it is alleged: “ That the plaintiff ought not to further prosecute his action against these defendants, because the Carson River mentioned in the complaint is a stream of water within the State of Nevada, and the defendants are and were at the time of the alleged commission of the grievances complained of a copartnership, formed for the purpose of running, driving, booming and rafting logs, lumber, timber, and wood in the said stream, within said State, under an Act of the Legislature of Nevada, approved March 3d, a.d. 1866. That under and by virtue of the provisions of said Act, any damage done to the plaintiff by reason of floating logs, timber, and wood, in Carson River, should be appraised by three appraisers, as provided by the law, ‘ which damage so appraised and determined is by said Act made final and binding upon the parties; that until such appraisement no action can be maintained against defendants.’ ” This part of the answer then concludes in this manner: “ The defendants aver that the plaintiff did not appoint an appraiser under said Act or otherwise, and that no appraisers were appointed or appraisement made under such Act or otherwise, and this the defendants aver in abatement of said action.”

The second defense or plea is, that other persons who are named, in the answer were connected with the defendants in the doing of the acts complained of by plaintiff, in consequence of which it is claimed the action should abate, or should not proceed, until they are made defendant. The Court below, went into a trial upon the defenses thus set up in the answer, and deciding in favor of the defendants, refused to try the cause upon the merits, but dismissed' the complaint, and rendered judgment against the plaintiff. . The first of these defenses would more properly have been the subject of demurrer; the second, if there were in fact a defect of parties, would properly be pleaded in the answer, for where the defect of *556parties does not appear in the complaint the fact may be pleaded in the answer. (Practice Act, Sect. 44.)

Without saying anything as to the rather irregular manner in which the case was disposed of in 'the Court below, we will turn at once to a consideration of the merits of the ground upon which the judgment was rendered.

It is claimed on behalf of the defendants that the law referred to in the answer authorized the doing of the acts by them which occasioned the damage complained of by the plaintiff, and that as the law itself has prescribed the manner in which damage in such cases shall be ascertained and recovered, no right of action accrues until such remedy is first sought. The assumption that this action is brought to recover damage for an act authorized by law was the foundation of the errors committed by the Court below, and constitutes the salient point in the argument of counsel for the respondents. The law referred to in the answer, after having authorized persons complying with certain requirements to run and drive logs, timber, lumber, and wood on any of the streams of water within the State, further authorizes them “to make and construct all proper and necessary rollways, booms, piers, and other constructions along the stream of water for running, driving, booming, or securing said logs, timber, lumber, and wood, provided that nonsuch rollway, boom, or pier, or other construction, shall interrupt or hinder the free use and navigation upon such streams or waters ; and provided further, that, nothing contained in this Act shall authorize any corporation formed under the same to injure, or in . anywise interfere with any dams, ditches, or flumes that are constructed, or may be hereafter constructed, for milling or farming purposes; provided, that all dams hereafter constructed shall, whenever the same is required by any corporation hereafter formed under this Act, provide suitable and necessary chutes and aprons for the purpose of passing over, or through said dams, logs, or other timbers; and provided further, that the rights of those owning lands upon such streams and rivers shall not be interfered with or infringed upon.” And it is after-wards declared in the same section that “Ally damages to ranches, bridges, dams, or other property on any river or stream, by the parties using the same in floating logs or timber or otherwise, *557shall be appraised by three appraisers; one to be chosen by the party injured, one by the superintendent of the corporation or other pai-ty complained of, the other by the two so chosen. The decision of the said appraisers shall be final and binding on both parties, and the damage so determined shall be promptly paid; and if the damages so appraised are not paid within one month after the same are appraised, then the party liable shall be liable in double the amount of damages so appraised, and the Court shall give judgment in case of suit for such double damages.”

Had the injury complained of by the plaintiff been the natural or necessary consequence of the floating of timber or wood down the river, and not the result of carelessness or negligence on the part of the defendants, undoubtedly the remedy prescribed by the statute would have to be pursued. The remedy prescribed by the law, however, is simply for damages necessarily or naturally resulting from the exercise of the right given to the defendants. The law does not sanction or authorize a careless or negligent exercise of the privileges conferred by it, but as in the exercise of all rights the defendants were bound to employ a reasonable degree of caution to avoid injury to others. Every act of the defendants which was not authorized by the law either expressly or by necessary implication, and which resulted in injury to the plaintiff’s property, was as much a trespass as if there had been no statute whatever on the subject. It must be admitted that the injury complained of would clearly be a trespass if there were no law to sanction it; but no authority can be found in the Act referred to authorizing the defendants to flood the plaintiff’s land when such flooding does not naturally or necessarily result from the exercise of the right to float timber and wood in the stream. When such overflowing is the natural result of the acts expressly authorized by the law, the presumption is that it was also authorized to the extent that it could not be treated as a trespass. If, however, the overflowing of the land was not the natural or necessary consequence, of the running of lumber or wood in the river, (which is the only right expressly given to the defendants) but is the result of wanton carelessness, there is no law whatever authorizing it, and it then becomes a mere naked trespass.

Suppose, for example, the plaintiff’s land was deliberately over*558flowed from mere wantonness by the defendants, can it be said that they would not be amenable to an action of trespass ? Certainly not, for it will not be contended for a moment that the law authorized any such act; but does it give him any more protection who does the same thing from carelessness or negligence ?

It will be observed in all the cases referred to by counsel for respondents that the damage was the probable or necessary result of the acts authorized by the law.' In such cases trespass could not be maintained, because it is presumed that the law sanctions the immediate act occasioning the damage. Not so here, however. The foundation of the plaintiff’s action is the negligence of the defendants in the exercise of the right given them by the law. Without establishing such negligence and carelessness he cannot recover, whilst if - he brought his action under the statute, it would not be necessary for him to prove either. The simple proving of damage, although resulting inevitably from the acts authorized, would entitle him to recover. Had the complaint not charged negligence and carelessness upon the defendants, the position taken by counsel for respondents would perhaps be correct. As it is, however, the action is founded upon acts unauthorized by the law, and therefore constituting a trespass. This being the case, the second ground taken by defendants also fails, for the rule of law is well established that all the persons engaged in a trespass need not be united as defendants. The plaintiff has the option to proceed against all or any one, where trespass is of a character capable of being committed by more than one. (Chitty on Pleadings, 87.)

It is intimated that that portion of the statute prescribing the” mode of recovering damages, if an exclusive remedy,-is unconstitutional because it deprives the injured party of a trial by jury. Without discussing this question at length, we will state that the constitutionality of the Act is sustained by many respectable authorities, the con’ectness of which we are not disposed to dispute upon the mere suggestion of counsel and without argument. (Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige Ch. R. 45; 1 N. H. 339; 11 Mass. 364; Id. 465 ; 8 Ohio State Rep. 590.)

The judgment below is reversed, and the Court directed to proceed with the trial on its merits.

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