Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co., 79 Wis. 297

79 Wis. 297 | Wis. | 1891

Orton, J.

This appeal is taken by the defendant the Gedar Greeh Hydraulic Company from the order of the circuit court overruling its demurrer to the'complaint. The substantial facts stated in the complaint are as follows:

The Cedcur Lahe Hotel Company is a corporation of this state, and owns several acres of ground and a hotel, with all the necessary appliances and improvements as a pleasure resort for 200 guests, on the shores of Big Cedar Lake, in .Washington county, and of great value and profitable. Its value mainly consists in being situated on the shores of said lake, with access to the waters thereof for boating, fishing, and other recreations, which make it attractive to visitors and guests. About eighteen years ago the defendant company organized under ch. 26, P. & L. Laws of 1867, amended by ch. 147, Laws of 1875, commenced its works at the outlet of said lake into Cedar creek, by deepening it and placing therein a gate by which the waters of said lake could be raised above its ordinary stage, and lowered below its lowest natural low-water mark. The defendant Andrew Boden-doerfer owns the majority of the stock of said company, and about eight or ten years ago became its president at the last meeting of said company, and has managed its works and affairs mainly for his own benefit, and has continued to control the works at the outlet of said lake, and to adjust and control said gate at his pleasure; and the defendant Christian Baer has been his servant and employee in the same. The defendants have frequently, down to nearly the present time, so managed said gate as to draw down the waters of said lake far below its lowest water-mark, so as to leave the shore line of said waters opposite and contiguous to said premises of the plaintiff company far out and away from its natural shore line, and to leave the wide margin thus exposed only bog, mud, and swamp, which are not only of repulsive and unpleasant appearance, but also unhealthful and injurious to the managers, servants, and guests of said hotel. The result has been that the plaintiff’s said property has been greatly injured, and nearly destroyed in its use and value, and has frequently lost the entire advantage of being contiguous to said lake. The defendants threaten to dig ditches about said outlet, and deepen the outlet itself, so as to draw down the waters of said lake still lower, and they will do so unless restrained by injunction. The plaintiff has already suffered damages by their unlawful acts in the sum of $5,000, which is demanded, together with an injunction to restrain the lowering of said lake in this manner, and a mandatory injunction to fill up the outlet of said lake to its original level, and make it impossible to ’ so draw down the waters of said lake. The lowering of said lake below low-water mark is the main cause of complaint; but it is complained also that the defendants have often, by shutting said gate, caused the waters to rise so far above low-water mark as also to injure the property of the plaintiff by flowing its grounds, without first having made provision for compensation, but no special relief is asked on account of the same. The demurrer is in behalf only of the company, with no appearance of the other two defendants.

1. The cause of demurrer of improper joinder of the defendants, by joining with the company the said Boden-doerfer and Baer, is not a matter of any interest to the company. It neither adds to nor detracts from the liability of tlie company to join them personally in these unlawful acts of the company. It is for them to complain of improper joinder, and not the corporation. But it seems clear that these defendants have so managed the works for and on behalf of the company, and under its pretended powers and authority granted by said act of the legislature. The learned counsel of the appellant contends on this appeal that the acts complained of were warranted and justified by the charter of the company. One of the defendants was president of the company, and the other one his servant or employee.- It would be useless to enjoin the company, and leave these defendants personally to continue the mischief. It is apparent that the defendant Bodendoerfer has mingled his own property and works with those of the company, so as to call them his own or those of the company, at his pleasure. The complaint would seem to be careful and considerate in these respects.

2. Another cause of demurrer is that the action is barred by the statute of limitations. The -grievances have been continued nearly to the present time, and are still threatened. The plaintiff is damaged every time the lake is so lowered, and that has been occasional to within the last year. The mischief commenced many years ago, but it has continued, and will continue, without the remedy of injunction. The action is not liable to the bar of any statute.

3. It is contended that there has been so great delay in the equitable remedy that the plaintiff has lost his claim to any relief. It is not stated that the defendants have constructed valuable works and spent large sums of money under the encouragement and sanction of the delay, that ought to estop the plaintiff from now asking for an injunction and a mandatory injunction to destroy such works. The machinery by which all the mischief is done is very simple and inexpensive. The deepening of the channel of the outlet into Cedar creek, and placing said gate therein, and the raising of such gate, are the works complained of, and the defendants threaten to dig the channel still deeper, and to draw down the lake still lower. The works of the defendants are a continuing private nuisance to the plaintiff in their effect upon the waters of the lake opposite its hotel property. The plaintiff has long suffered it, and it would seem to be right and in good conscience to now ask for its abatement.

4. It is idle and frivolous to contend that the plaintiff has no such right or interest in the shore of the lake opposite said hotel property as to justify the interposition of the court, or claim damages 'for -so causing the lake to recede from its contiguity with it.

5. It is claimed that there is a misjoinder of the demand for judgment for past damages with the equitable relief. It is sufficient, in such a case, that the court has jurisdiction in equity to issue 'the injunction; for, having so obtained jurisdiction, a court of equity will retain it for all proper relief, whether at law or in equity. Stadler v. Grieben, 61 Wis. 500; Fraedrich v. Flieth, 64 Wis. 184; Brickner W. M. Co. v. Henry, 73 Wis. 229; Patten Paper Co. v. Kaukauna Water-Power Co. 70 Wis. 659. In Brickner W. M. Co. v. Henry, supra, it is held that a court of equity, having otherwise jurisdiction of the case, can award damages as well as a court of law. These cases are sufficient authority for such a case as is made by the complaint. It seems to be a very strong case for the interference of a court of equity.

6. It is contended that the charter gives the right to the defendants to do as they are charged with having done, even to the lowering of the lake. The only object or power stated in the act is to raise the lake above the low-water mark as a reservoir to hold water for hydraulic purposes. No power whatever is given or implied to lower the lake below low-water mark.

The damages claimed may not be recoverable against all of the defendants, but the court can adjust that matter agreeably with the facts, and render judgment against the party liable therefor. The complaint is good for equitable relief, and that is sufficient under a general demurrer. The demurrer was properly overruled.

By the Court.—The order of the circuit court is affirmed, and the cause remanded for further proceedings.