Fairbanks v. San Francisco & North Pacific Railway Co.

Fairbanks and the National Fire Insurance Company joined in this action to recover damages for the destruction of a certain building by fire, resulting from defendant’s negligence. It was alleged in the complaint that the building was the property of Fairbanks, of the value of eighteen hundred and thirty-five dollars, and insured by the insurance company for nine hundred dollars, which latter sum said company paid to Fairbanks before the commencement of the action; also, that Fairbanks’ business carried on in the building was interrupted by its destruction, to his loss of profit, stated at three hundred dollars; plaintiffs prayed damages in the sum of two thousand one hundred and thirty-five dollars. A demurrer to the complaint for misjoinder of plaintiffs and of causes of action was overruled, and defendants answered, denying, among other things, that Fairbanks owned the building.

■ It appeared in evidence that one Fulton formerly owned a tract of land which included said structure; December 10, 1872, he conveyed the land to defendant by deed containing a reservation of the “ right to maintain” the building, with the privilege of ingress and egress to and from the same over the lands conveyed. In the year 1884, whatever transferable interest was thus saved to Fulton became vested by proper deeds of conveyance in one Estinghausen, and, on June 5,1890, the latter executed a deed of the land containing the building to Fairbanks. Estinghausen, and after him, Fairbanks, until the time of the fire, had possession of the building adversely to defendant, and paid all taxes thereon; they sueessively claimed to own both the building and the land on which it stood, but after 1883

Defendant claims that the joinder, of plaintiffs was rendered improper by the allegations of injury to Fairbanks’ business, a source of damage in which the insurance company had no interest. But the same objection would apply to the value of the building above the amount of the insurance policy, and that this may be recovered in a joint action such as the present is conceded by defendant, and is established by authority upon sound considerations of justice and expediency. (Swarthout v. Chicago etc. Ry. Co., 49 Wis. 625 ; Crandall v. Goodrich Transp. Co., 16 Fed. Rep. 75 ; Home Mut. Ins. Co. v. Oregon Ry. etc. Co., 20 Or. 569 ; 23 Am. St. Rep. 157 .) The negligence which gave rise to the action was the single cause of the whole injury, and, unless all the damage of either plaintiff is recoverable in the joint' action, defendant must be twice vexed for the same delict; and it seems to us that to allow as damages to the joint plaintiffs the value of the building in excess of the policy, and deny the recovery in the same action of other damages to the insured proximately caused by defendant’s negligence, would be to create a useless distinction, and balk at an imaginary difficulty. (See Code Civ. Proc., sec. 378; Bliss on Code Pleading, sec. 73; People v. Morrill, 26 Cal. 360 .)

Counsel have discussed with much learning and ingenuity the effect of the saving clause in the deed of Fulton to defendant—whether it operated to reserve a mere unassignable easement in gross, as argued with considerable force by defendant, or an exception of a profit a prendre at least in favor of the grantor, as plaintiffs contend. We think the proper construction of the deed unnecessary to be now determined. For the purposes of adverse possession, and the invocation of the statute of limitations, there may be cleavage of corporeal real estate horizontally as well as vertically; this appears

The judgment and order appealed from should be affirmed.

Belcher, C., and Searls, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Harrison, J., Van Fleet, J., McFarland, J.