Clark v. Plummer

31 Wis. 442 | Wis. | 1872

Cole, J.

It is objected on the part of the defendant, that there was no evidence in the case which showed title in him, either equitable or legal, to the dams, piers and booms which were repaired, and consequently that there was no ground upon which his liability to make contribution could be predicated. The dam, booms and piers were kept up and maintained under a charter granted by the legislature, which authorized Shuter, Barnes, Mclndoe, their associates, heirs and assigns, to maintain them. Chap. 82, P. & L. Laws of 1854. The mill formerly owned by Barnes, with another mill on the same water power, now belongs to the defendant. He is therefore an assignee, under Barnes, of the rights and privileges granted by this charter. Moreover it is admitted that the defendant occupies and enjoys in common with the plaintiffs —- and has for years — the use of the dams, booms and piers, for his mills and in carrying on his business of manufacturing lumber. Their possession and use are indispensably necessary for the enjoyment of his property, and he has the benefit of all repairs which are made upon them. These facts are indisputable. And it is also conceded that for years past these piers, booms and dams have been kept in repair and preserved at the joint expense of the parties to this suit, in certain proportions. Our statute recognizes the duty of joint owners of mill dams, booms, and piers to unite in the expense of making necessary repairs, and provides a summary mode by means of which the necessity for making them, the expense thereof, and the times in which they shall be commenced and completed, shall be determined. Chap. 56, R. S., Taylor’s ed., secs. 48, 44 et seq. We do not, however, understand that the defendant seriously questions his liability to contribute to a certain extent towards these repairs. He admits that he is a joint occupant of the dams, piers and booms; that they are essential to the beneficial use and enjoyment of his property; and that they have for years been kept up and maintained at the joint expense of the owners. It is therefore a question of no practical consequence to inquire whether the parties are, strictly speaking, tenants in common in the dams, booms and piers, or what their precise legal title may be, so long as they are in the joint use and possession of them, and have united in maintaining and repairing them since 1860. Upon any just and equitable principle, the defendant ought to contribute towards tbe expense of tbe repairs while be enjoys tbe benefit of them. Bnt tbe real controversy in this case appears to be, as to tbe basis upon wbicb tbe expense of making tbe necessary repairs is to be apportioned. Tbe court below held that by tbe mutual agreement and understanding of tbe parties, tbe expense of making them was to be borne in tbe following proportions, viz.: tbe plaintiff Ciarle, was to pay two-nintbs; tbe plaintiff Mclndoe three-nintbs; and tbe defendant four-nintbs; and tbe expense was evidently intended to be adjusted on that basis, though, according to our computation, some slight mistakes were made in tbe apportionment. But there is no error of wbicb tbe defendant can complain. It is insisted, on the part of tbe defendant, that tbe proper basis for apportioning tbe expense of repairs was tbe number of saws supplied with logs by means of tbe booms and dams. It appears that in 1860 tbe number of saws manufacturing lumber on this power was seven, and, by tbe consent and agreement of parties, tbe repairs were made on a basis of sevenths. In 1863 contributions were made by ninths — the Lyman mill with two saws having been added. And tbe evidence shows very satisfactorily that this rule of apportionment continued until tbe repairs in controversy were made. It is said that in 1865 tbe saws were changed to rotary saws in all tbe mills, reducing tbe number of saws to five, of which Ciarle bad one, Mclndoe two; and tbe defendant, who owns tbe Lyman mill, has two. But although this change was made in tbe kind of saws used in tbe different mills, there does not seem to have been any change in tbe basis of contribution. This point is placed beyond all controversy by tbe evidence in tbe case. Even tbe defendant himself testifies that “ in 1865, ’6 and ’7 the basis had been by ninths,” although be does further say, in substance, that in respect to tbe repairs made in 1866 under tbe Casterlin & Lawrence contract, wbicb required him to pay four-ninths, be objected, and insisted that this was more than bis just proportion. He claimed that this contract was executed for him by an agent not duly author ized; jet, by tbe contract made in 1868, signed by bimself, be agrees to pay four-ninths of tbe repairs. This contract, with tbe other evidence, shows most conclusively that tbe rule of contribution was in this proportion after tbe repairs mentioned in tbe complaint were made. And we should have no doubt that this was tbe proper basis for apportioning tbe expense, even from tbe evidence contained in tbe bill of exceptions. But tbe bill of exceptions, as settled by the circuit judge, does not purport to contain all tbe evidence upon’ which bis finding was made, and we therefore could not disturb it if we bad doubt about the correctness of bis finding upon tbe question of fact.

Tbe arrangement made between tbe defendant and bis tenants, Brown and Fellows, about tbe payment of a certain portion of the repairs, cannot affect the rights of the plaintiffs to compel contribution from him. As a matter of fact it appears that be Was credited for more than $1,000, for repairs made and sawing done by them.

The equities of this case are plain. Chancellor Kent says that tbe doctrine of contribution, in cases like tbe one before us, rests on tbe principle that where parties stand in cequalijure, equality of burthen becomes equity. 4 Com., marg. p. 871. The plaintiffs and defendant, in respect to these dams, piers and boom, stand in equal right. And for expenditures made for tbe common benefit the principles of equity require that each should pay bis just proportion. This result is attained, so far as tbe defendant is concerned, by tbe judgment of tbe court below. We think, therefore, it should be affirmed.

By the Court — Judgment affirmed.