American Plate Glass Co. v. Nicoson. obstruction aforesaid the water is maintained by appellant around and against the embankment of appellees, a large amount of which percolates through and under said levee into said quarry, and to operate said quarry appellees are compelled at a great expense and damage to remove same. by pumps, causing great difficulty and delay in removing the stone, and requiring an additional amount of labor to operate said quarry, and that, unless said dams are removed, the water from said creek will continue to percolate through and under said levees into said quarry, rendering it practically worthless, and the business of operating said quarry will be materially interfered with, and plaintiffs will be at a constant and increased expense on account thereof; that by reason thereof appellees aver damages; that the depositing of sand in said creek, and the maintenance of said dams, and the building of said levees by appellant materially interfere with the enjoyment of said property by the appellees, and will prevent the free use of said property, constituting a nuisance which they ask the court to abate, and, unless enjoined, appellant threatens to and will continue to maintain said dams, and continue to deposit sand in said creek, and construct and maintain the levees it has commenced to build, and each of them, to the irreparable injury of appellees. Appellees demand judgment for damages, etc. The appellant vigorously attacks this complaint for want of sufficient facts, and insists that the complaint is not sufficient to withstand a demurrer, because of the improper joinder of parties, and a failure to aver the defendant was ever warned not to discharge sand into the stream, and that the pleading contained no independent averment that the discharge of sand into the stream by itself is working an injury irreparable or otherwise. 1. As to joining parties plaintiff under our code (§263 Burns 1901, §262 R. S. 1881), it may be said that the statute is to have a liberal construction, but nevertheless the American Plate Glass Co. v. Nicoson. complaint must state a cause of action in favor of all the plaintiffs, and it must further appear that each of the plaintiffs has an interest in the subject of the action; that is, the grievance must be common to each, and the injury complained of, as in the case at bar, committed at the same time, by the same act, and that each party is interested in the same relief asked by the other or some part of it. When these facts are made to appear, a joinder of parties may be had, although their interest in the judgment may be unequal. Armstrong v. Dunn (1896), 143 Ind. 433; Brumfield v. Drook (1885), 101 Ind. 190; Holzman v. Hibben (1885), 100 Ind. 338; Elliott v. Pontius (1894), 136 Ind. 641; First Nat. Bank v. Sarlls (1891), 129 Ind. 201, 13 L. R. A. 481, 28 Am. St. 185; Home Ins. Co. v. Gilman (1887), 112 Ind. 7; Town of Sullivan v. Phillips (1887), 110 Ind. 320; Young v. Board, etc. (1865), 25 Ind. 295; Tate v. Ohio, etc., R. Co. (1858), 10 Ind. 174, 71 Am. Dec. 309; Rowbotham v. Jones (1890), 47 N. J. Eq. 337, 20 Atl. 731, 19 L. R. A. 663; Demarest v. Hardhan (1881), 34 N. J. Eq. 469; Robinson v. Baugh (1875), 31 Mich. 290; Snyder v. Cabell (1886), 29 W. Va. 48, 1 S. E. 241; 2 Beach, Injunctions, §1052; 1 High, Injunctions (3d ed.), $757. In the case at bar, while it may appear that one of the appellees is the owner of the real estate, and the other operating and conducting a stone quarry partly situated on the same land, yet each is complaining of the same alleged nuisance caused by the same acts, and each is interested in the event of the suit, and the relief which may be granted to one also inures to the benefit of the other, and not to permit them to join in this action would be to violate a plain rule of equity pleading enabling all such parties to join as plaintiffs in order that the court may make a final order and thereby prevent a multiplicity of suits. Town of Sullivan v. Phillips, supra. As stated in First Nat. Bank v. Sarlls, supra: "They American Plate Glass Co. v. Nicoson. all claim one general right to be relieved from that which they insist is a nuisance, and which alike affects all of them. Their common danger and common interest in the relief sought authorize them to join in the action." Supporting the same rules, see Fleming v. Mershon (1873), 36 Iowa 413; Marselis v. Morris, etc., Banking Co. (1830), 1 N. J. Eq. 31; Shepard v. Manhattan R. Co. (1889), 117 N. Y. 442; Story, Eq. Plead., $72. 2. It is true, as has been said by appellant, that the wife can not join the husband in an action where the remedy belongs to the husband, but it has been held that "a married woman may sue as sole plaintiff, under $255 Burns 1901, $254 R. S. 1881, where the action concerns her separate property, or her husband may be joined with her as her co-plaintiff." City of New Albany v. Lines (1899), 21 Ind. App. 380. Under $255, supra, a married woman may sue as sole plaintiff where the action concerns her separate property, and, as the land is the sole property of Mrs. Nicoson, she might and could have maintained this action upon her own account. There is conflict in the averments of the complaint as to whether or not appellees are jointly interested in the operation of the quarry. If they are, it could not be successfully contended that they could not join in. this action. Assuming that the husband is the sole owner of the business of operating the stone-quarry, then he is affected only to the extent that his business is interfered with by the alleged nuisance; and if by the averments of the complaint the interference appears to be material and substantial, the appellees' right to join would not be tested by the fact that they are husband and wife, as each would have an individual grievance, for which they demand the same relief occasioned by the same acts charged to have been committed by appellant. For the reasons stated, in our opinion, the parties plaintiff may properly join in this action. 3. In the case at bar the alleged cause of action is based American Plate Glass Co. v. Nicoson. upon alleged injuries resulting from affirmative acts taken and threatened to be committed by appellant. In such cases plaintiffs are not required, before beginning suit for an injunction, to demand the wrongdoer to desist from wrongful acts amounting to a nuisance and irreparable injury to the complainant. Charleston, etc., Railway v. Johnson (1884), 73 Ga. 306. In Dunsbach v. Hollister (1888), 49 Hun 352, 2 N. Y. Supp. 94, affirmed in 132 N. Y. 602, 30 N. E. 1152, it was held that where the defendant creates a nuisance by conducting his business in such a manner as to do harm to people living in the neighborhood, it is not necessary to give him notice of the injuries caused by his business before bringing a suit against him for an injunction. The appellant here, in the discharge of sand into the channel of Pipe creek in such quantities as materially to raise the bed of that stream to such an extent that appellees' land was on that account overflowed and caused to remain under water, although such effect was produced by appellant in the legitimate conduct and operation of his business, and if to the irreparable injury of the appellees, both as to land and the operation of the quarry, under the above authorities, was not entitled to notice or demand on the part of appellees before the institution of this action. 4. Appellant further insists that there is no "independent averment in the complaint that the discharge of sand into the stream, by itself, is working an injury irreparable or otherwise." The complaint avers that the water in the creek is obstructed by depositing sand in its channel and by dams, and that "said sand has been during all of said time, and is now being, deposited in said stream, causing said water to rise and stand at such height around and along the levees and embankments around said quarry." It is also averred "that the natural channel of the stream near and adjoining the land of appellee Mrs. Nicoson has been filled to the depth of several feet, as well as the channel of American Plate Glass Co. v. Nicoson. said creek greatly narrowed by the deposit of sand along the banks and sides thereof." In our opinion, the facts averred in this particular, taken in connection with all the other facts averred, are sufficient. As to the question of the complaint stating facts sufficient as to both of the plaintiffs to withstand a demurrer, we have had no little concern. 5. The court, upon appeal, may be assisted in determining the theory of a complaint by the record and briefs of counsel upon both sides. Carmel Nat. Gas, etc., Co. v. Small (1898), 150 Ind. 427. 6. Construing the complaint under the above rule, we are informed that its theory is to have the dams, as maintained, and the depositing of sand in Pipe creek by appellant declared a nuisance, and that appellant be enjoined from placing dams or depositing sand in said creek so as to obstruct the natural flow of water along the land of appellee Nancy J. Nicoson. "Where a complaint shows a right to some relief, it will repel a demurrer." Thomas v. Irwin (1883), 90 Ind. 557. It is not every injury committed and continued, or threatened, which will call into action the extraordinary powers of the court. While such injuries may be sufficient to support an action for damages, yet it can not be said, because of that fact alone, the party is entitled to injunctive relief. Cairo, etc., R. Co. v. Stevens (1881), 73 Ind. 278, 38 Am. Rep. 139. This being an action invoking the extraordinary powers of the court, the complaint must, in a plain and concise statement, aver such facts as will appeal to the conscience and discretion of the court that there is something more than a mere violation of plaintiff's rights, that there is no complete or adequate remedy at law, that it is not merely a transient trespass, that there has been no unreasonable delay under all the circumstances in the application for relief, that it is not to prevent a past injury, that it is not a doubtful case, but "the facts which are relied upon ought |