Lohmiller v. Indian Ford Water-Power Co.
8 N.W. 601
Wis.
1881
Check Treatment
Cole, C. J.

Thе only grounds relied on in this court to sustain the demurrer were the second and third, which were, that several causes of action were improperly united in the complaint, аnd that the complaint did not state a cause of action. In support of the first of these causes of demurrer, the learned counsel for the defendant insists that therе is an improper joinder of causes of action for the reason that the lands injured are in Jefferson county, while the dam which occasions the injury is in Rock county; сonsequently the causes of action so united require different places of trial. The gravamen of the complaint, surely, is for an injury to the plaintiff’s land in Jefferson cоunty occasioned by a dam in Rock county. The relief demanded is twofold — damages for the flowing, and an abatement of the nuisance. We are inclined to think the action was properly brought in the county in which the subject of the action was situated, under section 1, ch. 123, Tay. Stats. It is true, the cause of the injury is in another county. "Whether there would have been any difficulty in the way of the plaintiff’s having an abatement of the dam, if the place of trial had not been changed, is a question of no practical importance as the case now stands, and need not be considered. Certain it is, the action is now in the circuit court of Rock county, which has full jurisdiction over the cause, and can grant the plaintiff whatever relief he may show he is entitled to.

The learned counsel argued that the two kinds of relief sought in the action were essentially different, the one being purely legal, for a violation of the plaintiff’s rights and consequent injury, the other strictly equitable; and he claimed that these considerations affordеd a ground for holding, in a case like the present, that both causes of action should not be united. But, as we understand this action, it is a suit for damages resulting from a nuisance, wherе the plaintiff claims *688lie has sustained a peculiar injury. The action might well be sustained under the statute, ‍‌‌‌‌‌​​​​​‌‌‌‌​​‌​‌​‌​​​‌​‌​​​​​‌​​​​​‌‌​‌‌​‌‌‌​‍even if it did not exist at common law. Chapter 144, Tay. Stats.; chapter 137, R. S. Jurisdictiоn is expressly conferred upon the circuit courts by this statute, of actions to recover damages for and to abate private nuisances, or a public nuisanсe from which any person suffers a private or special injury peculiar to himself; and the courts have power to give judgment for an abatement of the nuisance. It seems to us there can be no doubt about the validity of this statute.

In Remington v. Foster, 42 Wis., 608, it.was decided that the remedy for the abatement of a private nuisance was by an action at law, and that the equitable remedy was abolished. The counsel says that there might be equitable matters touching the justice or propriety of adjudging an abatement, which cоuld not well be considered or made available in the legal action. But this point was directly decided the other way in the recent case of Pennoyer v. Allen, ante, p. 360. See, also, Cobb v. Smith, 23 Wis., 261, where it is said that, in an action for an abatement of a private nuisance under the statute, the defendant may set forth in his answer such facts as may show ‍‌‌‌‌‌​​​​​‌‌‌‌​​‌​‌​‌​​​‌​‌​​​​​‌​​​​​‌‌​‌‌​‌‌‌​‍he is entitled to the affirmative interferеnce of a court of equity to prevent the plaintiff from enforcing his legal right to an abatement. Also, see Durning v. Burkhardt, 34 Wis., 585; Cobb v. Smith, 38 Wis., 21.

Of course we have no occasion on this appeal to enter into questions of practice, as to how the equitable defense set up in an answer in actions of this kind shall be tried, or as to what proof is admissible оn the issues submitted to the jury. All these matters may be safely left to the determination of the trial court as they may arise in the cause. And as little occasion have we for inquiring whether the statute in any degree controls the equitable powers of the court, so that it could not prevent the destruction of valuable property, where the plaintiff prevails, and only a trifling injury is sustained *689by bim, or a mere technical right violated, by the existence of the nuisance.

It is further claimed that there is a misjoinder, for,the reason that the cause of action for an abatement affects only those defendants who have a present interest in the dam, while the cause of action for damаges does not affect the defendant Oasson, but does affect the defendants Hurd and Cobb, who were not owners when the suit was commenced. The authorities cited on the brief of plaintiff’s counsel fully establish the doctrine, that one who has erected a nuisance will be responsible for its continuance, even after he has partеd with the title and the possession,.especially where he has conveyed the premises with covenants of warranty. It has sometimes been questioned whether ‍‌‌‌‌‌​​​​​‌‌‌‌​​‌​‌​‌​​​‌​‌​​​​​‌​​​​​‌‌​‌‌​‌‌‌​‍a party continues liable who has conveyed by quitclaim deed. Mr. Wood briefly states the result of the decisions in the United States as follows: “The owner of premises, who has demised them with a nuisance thereon, is regarded as upholding a nuisance by receiving rent therefor. So, when he has conveyed the premises with covenants of warranty, he is regarded as upholding a nuisance by his covenants; but when the conveyance is by quitclaim deed, he simply conveys his right, title and interest in the property, and is not regarded as conveying any light in or to the premises which he did not legally possess, or which he could not legally exercise.” Section-828, Law of Nuisance.

It is alleged in the complaint that both Hurd aud Cobb conveyed by warranty deed. They would therefore be answerable-for the continuance of the nuisance, within the well settled principles of law. . It is said on thе other side, that the present' owners of the dam are liable not only for the damages occasioned during their respective ownerships, but also for such as have accrued since the date of the oldest title of either of them. That was the rule laid down by this court in Sabine v. Johnson, 35 Wis., 185, in a mill-dam case. Whether the same rule should be applied in this action is a point we need not decide,*690as there is no question as to how the damages should be apportioned now before us. The demurrant company is one of the owners of the dam, and supporting it; it is therefore liable in airy view. If there is any party defendant who is not interested in the dam, ‍‌‌‌‌‌​​​​​‌‌‌‌​​‌​‌​‌​​​‌​‌​​​​​‌​​​​​‌‌​‌‌​‌‌‌​‍nor liable for damages, the fact that such party was made defendant would be no misjoinder; for it is apparent, if no cause of action is stated against such defendant, there is no ground for saying that several causes of action are improperly united. Greene v. Nunnemacher, 36 Wis., 50, was referred to on this point, but that case is so clearly distinguishable from the one before us as to require no comment. .Thеre the owner of the premises which constituted the nuisance was made defendant with tenants who held under distinct leases from him for different periods. It was held that there was а misjoinder of causes of action.

The other ground of the demurrer, that the complaint does not state a cause of action against the company, is clearly untenable. It is said it appears from the complaint that the dam and flowage existed when the plaintiff purchased the premises, and it therefore must be presumеd he purchased them subject •to the easement, and has no cause of complaint. The cases of Kutz v. McCune, 22 Wis., 628, and Pomeroy v. C. & M. Railroad Co., 25 Wis., 641, are relied on in support of this .position. We do not think thеy are in point. The first case was an action for the breach of the covenants of seizin and ■against incumbrances. It was decided ‍‌‌‌‌‌​​​​​‌‌‌‌​​‌​‌​‌​​​‌​‌​​​​​‌​​​​​‌‌​‌‌​‌‌‌​‍that an easement obviously and notoriously affecting the physical condition of the land at the time of its sale was not embraced in a general covenant against incumbrances. In the Pomeroy Case this question was presented, namely: “ Where а claim has accrued for damages to an entire tract of land, by reason of the actual construction of a railroad over part of it, and, before thе damages have been assessed or paid, the land is sold- without any provision in respect to them,” whether the original owner is entitled to them. It was held that he was. These сases *691have little or no bearing upon this. Scribner v. Holmes, 16 Ind., 142; James v. Jenkins, 34 Md., 1; Wilson v. Cochran, 46 Pa. St., 232; Lallande v. Wentz, 18 La. Ann., 289, are analogous to the Ktttz Case, and lay down the same doctrine. “ The continuance and every use of that which is in its erection and use a nuisance, is a new nuisance, for which the party injured has a remedy for his damages.” Cobb v. Smith, 38 Wis., 33. This action certainly lies against the defendant company, one of the owners of the dam and premises, which suffers the nuisance to continue, and derives a benefit from its continuance.

By the Court.— The order of the circuit court is affirmed.

OetoN and Cassoday, JJ., took no part.