59 Wis. 393 | Wis. | 1884
Undoubtedly the rule is settled in this state, as urged, in effect, by counsel for the defendant, that when a complaint attempts but fails to state a cause of action in equity, a general demurrer thereto will be sustained, notwithstanding it may contain allegations which, if eliminated and standing by themselves, might be sufficient to constitute a cause of action at law. Denner v. C., M. & St. P. R’y Co., 57 Wis., 218, and cases there cited. To sustain the ruling of the trial court, the complaint must, therefore, state a cause of action of equitable cognizance.
Here, it appears, that the plaintiffs own the water-power in question, subject to the leases held by the defendant. It also appears that by virtue of the water-power the plaintiffs have a large amount of water in addition to that covered by the leases, the use of which they have the right to sell or lease. Upon the facts stated, the plaintiffs have, beyond question, an usufructuary interest in all the undisposed of water appurtenant to their water-power. They are clearly entitled to the enjoyment, use, and benefit of the waterpower created by their grantors, and to which they have
The mere existence of a legal remedy will not bar equitable interference where such interference would be more adequate, comprehensive, and effectual. Bemis v. Upham, 13 Pick., 170; Boston W. P. Co. v. B. & W. R. R. Co., 16 Pick., 521; Ballou v. Hopkinton, 4 Gray, 328. Of course, such preventive remedy is not given merely by reason of past injury, but to prevent its continuance. Cobb v. Smith, 16 Wis., 661. Where the continued use or threatened danger is such as to cause reasonable fear of irreparable injury, it is not essential that there should be actual damage, or even a completed violation of the plaintiff’s rights, in order to entitle him to the protection of equity. Webb v. Portland
In Lyon v. McLaughlin, 32 Vt., 425, both parties had rights to the privilege of water under their respective deeds, and the court aptly stated the rule thus: “It would seem to
Where there is an adequate method of measuring the water used,— as where the water can only be drawn through an orifice of fixed dimensions, or by wheels so constructed as only to admit of the use of a certain quantity, or by a water-meter,— there is less reason for equitable interposition; for in those cases the amount of the excess of water used can be approximately ascertained. But even in those cases it is frequently granted, as appears from the cases cited. Here it appears that the amount which has been, and continues to be, used, is greatly in excess of the amount covered by the leases, and yet without uniformity, depending evidently upon the wants and necessities of the defendant. This being so, it is apparent that the rights of the plaintiffs are at the mercy of the defendant. It may draw no more than its leases call for during portions of the day, and yet may draw largely in excess during other portions. This being so, it would be utterly impossible to prove the exact amount of such excess used in any considerable given period, and hence impossible to obtain adequate redress at law. Besides, to refuse equitable interposition would be to subject the parties, not only to a multiplicity of suits, but to continuous and interminable litigation. After a very Careful reading of many cases, and some of the latest and best text
By the Court.— The order of the circuit court is affirmed.