19 Wis. 100 | Wis. | 1865
By the Court,
The complaint alleges, in substance, that the plaintiff is the owner of certain lands in the county of Winnebago adjacent to a certain stream called Eos river; that in and during the year 1853, the Fox and Wisconsin Improvement Company commenced to. keep and maintain, and since that time has kept up and maintained, and still keeps up and maintains, á dam <?n and across the north channel of Eos river at Menasha in said county; that the other defendants mentioned in the complaint, in and during the year 1852, commenced to keep up and maintain, and have kept up and maintained, and still keep up and maintain, a dam on and across the south channel of said river at 'JSTeenah in said county; and by means of said two dams the whole of said stream, called Eos river, has been and now is obstructed; that by reason of the keeping up and maintaining the aforesaid dams by the defendants as aforesaid, the waters of said river are so checked, stopped and obstructed that the same are set back and made to raise the waters of Lake Winnebago above their ordinary level, and to cause the waters of said lake to be raised to such a height as to force their way up and into Eos river, and to check and obstruct the waters of said river ; whereby the said river and the waters thereof are so set back, checked,' stopped
Here are two distinct causes of action set out, one against tbe corporation defendant, tbe other against tbe other defendants. There is no allegation that all tbe defendants acted together in erecting or maintaining either or both of these dams; on the contrary, it is alleged they acted separately ; each dam was erected and has been maintained by a part of the defendants without the aid or even approval of the others. We are at a loss to perceive how, by the well established rules of pleading, these causes of action can be united. It is argued that the result of the separate acts of the defendants in erecting and maintaining the dams is a joint result, the same as if all the defendants had been engaged in erecting and maintaining both dams. If this were so, it does not follow that the defendant or defendants who alone erected and maintained one dam, without any concert of action or connection with the defendant or defendants erecting and maintaining the other dam, should be held liable to pay the damages occasioned by erecting and maintaining both. The argument that there is difficulty in ascertaining the damage done or caused by the erection of each dam, or that it is impossible, is certainly no reason why one defendant should pay for the damages caused by another with whom he is in no way connected. In fact, if this action can be maintained jointly against all the defendants, then each defendant is separately liable in a separate action for all the damages occasioned by the erection of both dams. We are referred to the case of Colegrove v. Harlem and New Haven R. R. Companies, 6 Duer, 382; 20 N. Y., 492. That was a case where a passenger standing on the platform of the car of one of the railroad companies was injured by a collision caused by the negligence of both of the corporations defendants or their respective servants, and the court held a joint action could be maintained against both companies. The court say: “ Had the
No opinion is expressed as to any of the grounds of demurrer except the second.
The order of the court below is affirmed, with costs.