113 Wis. 346 | Wis. | 1902
The appeal from the order of December 3, 1900, having been heretofore dismissed, we have here only to consider the appeal from the order sustaining the demurrer to and dismissing the answer' in abatement. By that answer the interveners sought to bring in as parties all persons owning property on the shores of Lake Mendota affected by the overflow caused by the dam at the outlet of the lake. The court below sustained the demurrer on the sole ground that, because the court had theretofore denied the right of the city to require such, additional parties to be brought in, it was res adjudicata, and binding upon the court in all subsequent proceedings in the case. The court was evidently in confusion in the matter. The former order had been made before the interveners had been made parties to the suit. They had had no day in court on the question involved. They were seeking to protect their own rights, and to prevent further harassing litigation. Conceding, for the purpose of the argument, that their answer was well founded, to say that their rights had been concluded and cut off by proceedings had in the action before they had an op»-
We come now to the question of whether, under the facts disclosed, these various property owners are necessary and indispensable parties to this litigation. We are well satisfied that the allegations of the answer are sufficient to indicate that such adjoining owners are substantially in the position assumed by the plaintiffs in Smith v. Youmans, 96 Wis. 103. There it was held that the artificial state or condition of flowing water, founded on prescription, be>comes a substitute for the natural condition previously existing, from which a right arises on the part of those interested to have the new condition maintained; or, to be more definite, the plaintiffs who had, for the period of prescription, ■enjoyed the advantages of the artificial level of water created' by the defendant’s dam, and in reliance upon its maintenance had improved their property at great expense, and conformed it to the changed conditions, had an easement on their part to have the waters kept at such higher level, and the'right to prevent the lowering thereof to their injury by the owner of the dam, at least so long as he did not abandon or surrender his easement to flood the lands. The recent case-of Kray v. Muggli, 86 N. W. Rep. 882, decided by the supreme court of Minnesota, expressly follows the Smith
“All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided by law.”
See. 2603 declares that:
“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.”
By sec. 2604 those who are united in interest must be joined as plaintiffs or defendants. If one who should be joined as plaintiff will not consent, he may be made a defendant. When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one may sue or defend for the benefit of the whole. Under the technical rules of the common law it "was not considered possible for two or more persons to be united as plaintiffs in the same action upon a contract unless they were, for all the purposes of that action, equally united in interest, unless the benefit of the contract belonged to them as a unit, and unless the right in them was created at the same time and by the same act. And the same rule was applied to the joinder of der fendants. The common law knew nothing of defendants against whom a judgment for the entire amount of debt and damages was not to be rendered, nor of defendants who
“It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all persons interested in, the subject of the suit, so as to malee the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation. For this purpose all persons materially interested in the subject ought generally, either as plaintiffs or defendants, to be made parties to, the suit, or ought, by service upon them of a copy of the bill, or notice of the decree, to have an opportunity afforded of malting themselves active parties in the cause, if they should think fit.”
A discussion of this question by Chief Justice Fuller in California, v. S. P. Co. 151 U. S. 229, is of the most helpful character. After stating that the court usually followed the former practice of the equity courts of England in analogous cases, he discusses the rule as to indispensable parties to a suit in equity. There are, it is said, three classes of parties to a suit in equity:
“(1) Formal' parties. (2) Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are .commonly termed ‘necessary parties’; but, if their interests are separable from those of the parties before the court, so that tibie court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. (3) Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.”
It is argued that it is impracticable to bring in all tbe riparian owners, and that all interests are represented in tbe suit as it is. This contention cannot be sustained. It is not shown that it is impracticable to bring all tbe owners into tbe suit. We shall not assume that it is because they are numerous. Further, tbe owners who- have been let in are not here in a representative capacity. Tbe order making them parties allows them in on their own behalf alone, and not on behalf of any other riparian owner. If it be shown that there is difficulty in making the numerous owners defendants, and the court believes that some may be proceeded against as repfesentat-ives of a class under the statute, so that the litigation as carried on will end the controversy as to those thus represented, the court may so determine when the merits of the answer in abatement are considered. But see Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493.
The motion to dismiss the appeal of the city must fail.. The city is the most interested party to this litigation. It stands liable to be ground between the upper and the nether millstone. It may stand in an adversary position as against all the parties in interest. On the one side the parties are calling for an abatement of the dam. On the other they are insisting that the dam be maintained as of yore. A ruling which denies the right of having this controversy determined in one suit is one in which the city is aggrieved. "Under sec. 3048 it had a right to appeal because of that fact.
On the one side it is claimed that the demurrer to- the matter in abatement reaches back and challenges the first de1-fective pleading, and that the complaint does not state a cause of action; on the other, that a demurrer to an answer in abatement does not reach defects in the complaint. We
By the Court. — The motion to dismiss the appeal of the defendant city of Madison is denied, with $10 costs. The order sustaining the'demurrer to the answer is. reversed, and-the cause is remanded, with directions to overrule the demurrer, and for further proceedings according to law.