111 Wis. 465 | Wis. | 1901
This is an appeal from an order sustaining a demurrer to the counterclaim set out in the answer. The action is ejectment to recover a strip of land twelve feet wide and 406 feet long in the bed of Fox Eiver, upon which is built the spill way and wing dam, as therein specifically described; and the complaint is in the statutory form, and alleges that the plaintiff is the owner, in fee of such premises. Sec. 3077, Stats. 1898.
The answer by way of defense alleges, in effect, that the premises are a part of a larger tract of land,described; that on and prior to January 15, 1850, said lands were held and owned by the parties therein named as tenants in common; that one Amos A. Lawrence, therein named, owned the undivided one-half thereof, and that Martin, Conkey, and Bowen, therein named, owned the other undivided one-half thereof; that, on the day and year mentioned, said parties, respectively, made, executed, and delivered,' each to the other a deed of partition, therein set forth, which was thereupon recorded; that the waterpower was appurtenant to that portion of the land set off in severalty to Lawrence, and the same, together with the rights, privileges, and easements, were expressly and by necessary implication granted and conveyed to Lawrence, and, through mesne conveyances, from him to the defendant; that whatever right the plaintiff has to the land described in the complaint is based upon, and derived solely from, conveyances from, by, or through Martin, Conkey, and Bowen, or those claiming
The defendant also answered by way of counterclaim, and alleges, in effect, such partition; that such water power was appurtenant to the land so conveyed to Lawrence; that the defendant succeeds to such rights through mesne conveyances from Lawrence, and that the plaintiff claims solely by mesne conveyances from Martin, Conkey, and Bowen, and their several grantees,, who took the same with full
Such is a general outline of the counterclaim, to which the plaintiff demurred. Obviously, it is nothing more in substance than a repetition of the several things alleged as a defense. No one will seriously contend that the running of the statute of limitation is available as a counterclaim; nor the practical construction of the deed of partition under which Lawrence and those claiming under him had been in the exclusive possession for twenty years and upwards. If such facts are available to the defendant at all, it is by way of defense. If the land, in question is included in the express and clear language of the grant to Lawrence, then, of course, it is available as a defense at law. If the terms of the grant are ambiguous and open to construction, and, by practical construction or otherwise, the language is such" as to include the land in question, then it is equally a defense at law. If the loans in quo is not included in the grant to Lawrence, then the deed to Lawrence is not avail
“A counterclaim, when established, must in some way qualify or defeat, in whole or in part, the plaintiff’s claim for judgment. Dietrich v. Koch, 35 Wis. 626. It must be a claim existing in favor of -the defendant and against the plaintiff, between whom a several judgment may be had in the action. Sec. 2656, R. S. 1878.” Moore v. Smead, 89 Wis. 569.
“Under the statute, the defendant in ejectment is at liberty, by way of counterclaim, to set up any matter as a defense which would, under the old practice, have formed an equitable defense; in which case, the answer must contain a demand for such judgment as he claims. Sec. 3078, R. S. 1878; Dobbs v. Kellogg, 53 Wis. 448; Lombard v. Cowham, 34 Wis. 486.” Moore v. Smead, supra.
The counterclaim thus -authorized in ejectment is, manifestly, one not available as a defense at law. If it is available at law, the opposite party is not, against his objection, to be driven to a separate trial in equity. In Lawe v. Hyde, 39 Wis. 345, it was held that a “defendant in ejectment cannot, generally, set up a counterclaim resting on his legal title, for a release to him of plaintiff’s claim of title, which the answer alleges to be void on its face, and without color of right.” In a later case it is held that, “in ejectment, facts which constitute a complete legal defense are not the proper subject of a counterclaim.” Brown v. Cohn, 88 Wis. 627, 633, 634. In that case our late brother PiNNEY said:
“ It seems to be well. established that a counterclaim, based upon the same facts which constitute a complete legal defense, cannot be maintained. ... A court of law, wherein the right of trial by jury is secured to the parties, is the appropriate tribunal and the proper forum for the trial and determination of questions of title to lands. . . ; If the contention of the defendants is maintainable, nearly every action for the recovery of real estate could, by mere form of pleading, be made cognizable in equity, and the plaintiff be thereby deprived of a trial of his action by a jury.”
By the Court.— The order of the circuit court is affirmed.