115 Wis. 361 | Wis. | 1902
The only question argued in the briefs is whether two or more causes of action have been improperly united in the complaint. The theory of defendants is that one cause of action is stated against the owners of the water power at the outlet of Fowler Lake for unlawfully decreasing the customary level of the lake, another against the Oconomo-woc Waterways Company for obstructing the accustomed flow of the river, and still another against the Schraudenbach heirs for unlawfully withholding water in Okauchee Lake. At first glance this theory seems somewhat convincing; but when the situation is carefully analyzed, and the primary and ultimate purpose of the litigation considered, the fallacy of the claim becomes apparent. The single purpose of the plaintiffs, as clearly outlined in the complaint, is to maintain the water in Fowler Lake at its accustomed level. The defendants Brown and Peacock interfere with plaintiffs’ right to have it so maintained by suffering the water to run over their waste channel and through their mill wheels to an extent that materially decreases the lake level. At times, and inferably at the same time this is going on, the Schraudenbach heirs withhold the natural flow of the Oeonomowoc river in Okau-chee Lake, thus diminishing the water supply of Fowler Lake. The waterways company also obstructs' the flow of the river, so as to further reduce the lake level. Although acting independently, their concurrent acts result in injury to plaintiffs’ property. It is perfectly apparent from the complaint as a whole that the acts complained of as against the last-named defendants unite with and concur with the acts of Brown and Peacock, and together produce the result claimed. It is true.
It must bé distinctly borne in mind that this is not an action to recover damages against tbe defendants. It is rather an action to restrain tbe commission of acts which result in a nuisance and consequent injury to plaintiffs’ property. In a legal action to recover damages, as in Lull v. Fox & Wys. Imp. Co. 19 Wis. 100, tbe several defendants could not be joined, because each defendant could only be held responsible for tbe injury done by him. In such case tbe injury done by one defendant may be slight, and by tbe other great. Tbe law only requires each to respond to the extent that be is guilty. It may seem somewhat anomalous that, under a Code, any distinction should exist between legal and equitable actions. That such distinction does exist is recognized in almost every Code
“There are certain essential and inherent distinctions between actions at law and in equity, to abolish which is beyond the power of legislative enactment. The legislature may abolish the old forms of actions, and has done so; but the essential principles of equitable actions and equitable relief, as distinguished from legal actions and remedies, are as vital now, and as clearly marked and defined, as before the enactment of the Oode. They are indestructible elements in our system of jurisprudence, and the courts are constantly required to recognize and apply them.”
The courts of New York announced the same doctrine early in the history of the Code. Reubens v. Joel, 13 N. Y. 488; Goulet v. Asseler, 22 N. Y. 225; Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 15-83. So pronounced and well-preserved is this distinction that this court sustained a demurrer to a complaint in an equitable action, notwithstanding it contained allegations which, if standing by themselves, would constitute an action at law. Denner v. C., M. & St. P. R. Co. 57 Wis. 218, 15 N. W. 158. The essential difference between legal and equitable actions has given rise to much discussion, and many diverse holdings may be found in the books when the question of multifariousness has been considered. That eminent writer, Joseph Story, treats the subject us follows:
“The conclusion to which a close survey of all of the authorities will conduct us seems to be that there is not any positive,*368 inflexible rule as to what, in the sense of courts of equity, constitutes multifariousness, which is fatal to the suit on' demurrer. These courts have always exercised a sound discretion in determining whether the subject-matters of the suit are properly joined, or not, and whether the parties, plaintiffs or defendants, are also properly joined or not. And it is not very easy, a priori, to say exactly what is or what ought to be the true line regulating the course of pleading on this point.” [Story, Eq. PL § 539.]
See Barnes v. Racine, 4 Wis. 454; Younkin v. Milwaukee L., H. & T. Co. 112 Wis. 15, 87 N. W. 861. The reports are bristling with precedents of varying degrees of strictness, and it is a matter of no inconsiderable difficulty to discover a right of way through them.
One of the leading principles of equity is that, when a decision is made upon any particular subject-matter, the rights of all persons whose interests are immediately connected with that decision and affected by it shall be provided for as far as they reasonably may be. In the application of this rule it was held that “a complaint does not improperly unite several causes of action which relates to matters of the same nature, all connected with each other, and in which all the defendants are more or less interested or concerned, though their rights in respect to the general subject of the action may be different, and some may be directly interested only in a part of the general claim.” Blake v. Van Tilborg, 21 Wis. 672; Douglas Co. v. Walbridge, 38 Wis. 179; Ellis v. N. P. R. Co. 77 Wis. 114, 45 N. W. 811; Grady v. Maloso, 92 Wis. 666, 66 N. W. 808. In Ellis v. N. P. R. Co., the action was to quiet title. The railroad company claimed all the land, and the other defendants separate parcels from different sources. The claim was that the complaint was multifarious because the causes of action were separate and independent as against the several defendants. The rule above stated was appealed to, and the complaint sustained, because the primary object was to quiet the title to the property, and all persons interested in that con
The supreme court of California carried the rule beyond limits in Hillman v. Newington, 57 Cal. 56. The plaintiff was entitled to the use of 400 inches of water flowing in a creek. The defendants severally diverted the water from the stream and materially diminished the flow. They did not act jointly or in concert, yet the court held they were proper parties defendant, and that damages might be recovered, and the cause of action therefor be joined with one to restrain the continuance of the diversion. The case was criticised and 'the
In Thorpe v. Brumfitt, 8 Ch. App. 650, it was held that the acts of several persons may together constitute a nuisance, although acting independently of each other, which the court will restrain, though the damage occasioned by the acts of any one, if taken alone, would be inappreciable. Blair v. Deakin, 57 Law T. (N. S.) 522, follows the case last mentioned, and emphasizes the fact that it was no answer for a defendant to say that he was acting separately and independently of the others, and that the share he contributed to the nuisanee was infinitesimal and unappreciable.
Cases might he multiplied sustaining the same doctrine, all going to show that the fact that the parties were acting without concert was no defense, if their acts contributed in some appreciable degree to produce the conditions sought to be repressed.
Counsel for appellants say with much confidence that the case of Lull v. Fox & Wis. Imp. Co. 19 Wis. 100, is decisive -of this case. We do not so regard it. Suppose the plaintiff in that ease, instead of bringing his suit to recover damages for the overflow of his land against the owners in severalty of
By the Court. — Order affirmed.