64 Wis. 184 | Wis. | 1885
1. The first question is whether the action is at law or in equity. We had the same question in Denner v. C., M. & St. P. R. Co. 57 Wis. 218. The complaint in that case contained a demand for relief which it was not competent for a court of law to grant, and for that reason 'alone it was held that the action was in equity. Because the complaint did not state a cause of action in equity, a general demurrer thereto was sustained. This action was commenced after ch. 190, Laws of 1882, was enacted, and is subject to that statute.
This is a stronger case for holding the action an equitable one than was the case above cited, for it not only contains a demand for exclusive equitable relief, but it also contains an averment that if the alleged nuisance is continued it will work an irreparable injury to the plaintiff, which the statute makes a ground for equitable relief. In an action at law, if an abatement of the nuisance be adjudged, unless the defendant gives security that he will remove it, a warrant issues to the proper officer, requiring him to abate the same. E. S. secs. 8182, 3183. In this case the demand is that the defendant be required to abate the nuisance by removing the obstructions from the watercourse and filling the ditch. FTo such relief can be granted in an action at law. '
The question is quite fully considered in the opinion by Mr. Justice Cassoday in Denner v. C., M. & St. P. R. Co., and nothing more need be said upon it. We think this case is ruled by the judgment in that case. It is immaterial that the question there arose upon a demurrer to the complaint, while here it arose upon an objection to a jury trial. In his case a demurrer would have been fruitless, because the
2. It is maintained by counsel for the plaintiff that, although the action is in equity, a new trial should not have been granted for that' reason alone, but that the court should have treated the verdict as though the questions answered therein had been specially submitted to the jury under the power of the court in its discretion to take the verdict of a jury on questions of fact involved in equity causes; and hence that the court should have determined the case by approving the verdict if satisfied with it, and if not so satisfied, by finding the facts from the evidence independently of the verdict, and should have given judgment accordingly. We perceive no valid objection to the practice here suggested in á case in which the court has before it all the evidence, and the trial has been conducted as it would have been had the cause been regarded throughout as in equity. In such a case, although the cause has been regarded as one at law, no good reason is apparent why parties should be subjected to the delay and expense of another trial.
In the present case a material question of fact raised by the pleadings^ is, Did the defendant obstruct the watercourse on his land as alleged in the complaint ? He avers that the. obstruction complained of was the result of natural causes with which he had nothing to do. The jury viewed the premises. The testimony given on the trial is not preserved in the record. We cannot know to Avlia-t extent the finding for the plaintiff on the above question is based upon what the jury saw. The obstruction to the watercourse may
We conclude this branch of the case with the remark that a view by a jury called in an equity case to determine a question of fact should not be allowed unless the trial judge participates therein. The reason is obvious from what' has already been said.
3. We do not think the defendant waived any right by going to trial before the jury, after the ctfcrt, against his objection, had held that to be the proper forum. It is somewhat in the nature of an objection to jurisdiction of the subject matter, which cannot be waived.
4. When the motion for a new trial was made, counsel for plaintiff asked leave to amend his complaint by striking from the demand for judgment every demand contained in it except for damages and costs. Leave was refused.
By the Court.— The order of the circuit court is affirmed.