McDougald v. New Richmond Roller Mills Co.

125 Wis. 121 | Wis. | 1905

MaRShall, J.

The character of the findings justifies calling attention to what was said in Farmer v. St. Croix Power Co. 117 Wis. 76, 93 N. W. 830, respecting the manner in which sec. 2863, Stats. 1898, should be administered. The opportunity at the circuit to become distinguished in respect to such execution is quite inviting and in some instances quite broad. In the case cited it was supposed enough was said to render the statutory duty clear. Attention was specifically called to the language requiring findings of fact and conclusions of law to be made by the judge, covering singly the issues of fact raised by tbe pleading, tbe minor conclusions of law and tbe final result, entirely free from extraneous matters. Here, we observe a very wide departure from sucb requirement. Tbe facts found might well bave been stated witbin fifteen folios, yet they are so involved in evidentiary and opinion matters tbat we are compelled to search through some sixty folios to discover them. Tbat is all wrong. Sucb a method weakens a decision, entails unnecessary labor on all who bave to deal therewith upon appeal, tends to render the vindication of tbe real right of the matter uncertain, and is a plain violation of tbe statute. It is hoped tbat tbe statutory requirements will be carefully followed where heretofore they have not been. If a trial judge sees fit to state reasons for bis conclusion in the form of an opinion be may properly do so in a separate instrument. Sucb opinions are often very helpful here.

We are unable to discover any warrant for tbe judgment so far as it deals with tbe rights of plaintiff’s children. They were not parties to tbe action. If tbe situation was one warranting respondent in constructing tbe dam without providing for tbe interest in tbe land of sucb children, relying on the' assurance of appellant tbat be was authorized to represent them and tbat whatever agreement he made in their behalf would be carried out, appellant might well be estopped from, recovering as to bis own rights, except upon condition of making good sucb assurance. In sucb circumstances as a basis for tbe judgment tbe damages to tbe whole interest in tbe land caused by tbe construction and maintenance of tbe dam would be a necessary factor.

True, tbe son, Amos, and tbe daughter, Helena, are not bound by tbe judgment, yet their interests are so far affected thereby as to appellant, tbat it seems the court should not bave dealt therewith at all without tbe owners being before tbe court. It was impossible, with tbe view taken of tbe case, to adjudicate appellant’s rights without also adjudicating, to< some extent at least, those of his children. Therefore they should have been parties to the litigation for their dne protection, regardless of the fact that they could not really be bound by the judgment.

Except as to appellant’s interest in the land, the point made that the court erred in rendering judgment on the counterclaim must be sustained. The peremptory language of sec. 2610 applies, “when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in 'the subject matter of the controversy as to require them to be made parties for their due protection, the court shall order them to be brought in.” In a plain case such as this the court should not only order the necessary parties brought in, but should refuse to proceed in their absence, and if the party whose duty it is to move in the matter neglects to do so, such action should be taken as seems best for the protection of the rights of the adverse party. The statute merely incorporated, into the written law a well known equitable rule. Its scope-has not been definitely outlined by decisions in this court, but: it has been elsewhere under Code systems similar to ours. Osterhoudt v. Ulster Co. 98 N. Y. 239; Mahr v. Norwich U. F. Ins. Soc. 127 N. Y. 452, 28 N. E. 391; Steinbach v. Prudential Ins. Co. 172 N. Y. 471, 65 N. E. 281; 15 Ency. of Pl. & Pr. 688, 689. A motion to bring in the necessary parties to an action does not fall within the field of sec. 2654, Stats. 1898, which provides in effect that failure to object by a proper pleading as to any defect other than want of jurisdiction or want of facts sufficient to constitute a cause of action is to be deemed waived, does not apply to want of necessary parties. As was said in effect in Osterhoudt v. Ulster Co., supra, as to similar provisions in New York, the mandatory part of sec. 2610 must be so construed with sec. 2654 as to render the former a proviso to the latter.

The court is not bound to wait for an objection that necessary parties are not before the court before acting in that regard. It may do so upon its own motion and may entertain an objection in regard to the matter at any time while jurisdiction to hear the case remains. In Mohr v. Norwich U. F. Ins. Soc., supra,, it is said:

“While the statute does not in terms prohibit the court from determining the controversy, unless all the necessary parties are brought in, that is impliedly commanded.-”

In Steinbach v. Prudential Ins. Co., supra, it was said, quoting from, a former case, “when persons who are necessary parties are not joined, the court will not proceed until they are brought in. . . . Under the Code the court is bound to take the objection when a proper case is presented.” It was there suggested, as it might be here, that it was not necessary to bring in the alleged necessary parties for their due protection, since they could not be bound by the judgment in an action to which they were not parties. To that the court answered, “a complete determination of the controversy cannot be had where there are persons, not parties, whose rights must be determined, in form at least, at the same time that the rights of the parties to the action are determined. The court cannot know how great the risk may be and hence should not permit it, even if it thinks it is remote.”

The general effect of the decisions is that where there is a -defect as to necessary parties to the litigation, for the court to proceed is to violate a statutory command — to commit jurisdictional error in the sense of inexcusably departing from (established principles respecting the exercise of judicial power, error of the sort which, while it does not render the judgment void, as in case of want of power, renders it erroneous upon grounds which may be raised at any time while the court by due process of law has control of the cause. Harrigan v. Gilchrist, 121 Wis. 127, 224, 227, 238, 99 N. W. 909.

Considerable space is given in the briefs of counsel to the question of whether tlie findings are sustained by the evidence. We shall rest the case upon that branch by saying we are unable to discover any warrant for holding any of the findings against the clear preponderance of the evidence. Therefore, upon familiar principles they must stand as verities.

The facts found upon which the conclusion of law is based that plaintiff is estopped from prosecuting this action upon condition of respondent doing equity by paying into court the full amount of damages that have accrued, or will accrue, to the land in question by the construction and maintenance of the dam, as regards appellant, are fully sufficient therefor within the principle of Cobb v. Smith, 23 Wis. 261; Cobb v. Smith, 38 Wis. 1; Wall v. M., St. P. & S. S. M. R. Co. 86, Wis. 48, 56 N. W. 367, and numerous other authorities that might be referred to. The doctrine thereof rests on the familiar rule that he who fails to speak when he ought to do so the court will not hear when he does speak. In Cobb v. Smith, supra, it was held that where a person for a valuable consideration paid, or agreed to be paid, to him by another agrees to -permit such other to use his land in such a way that the termination of the privilege would cause great and irreparable damage to such other because of his having changed his position, in reliance upon such privilege being permanent, equity jurisdiction will not restrain such other from continuing to enjoy such privilege if he submits to such equitable conditions in that regard as the court shall deem just. Here, the facts found as to appellant’s interest clearly satisfy that rule. Uefore respondent commenced the construction of the dam a verbal agreement was made with appellant, whereby the former was assured of a permanent right to flow the land in question so far as the same might be affected by the backwater created by the dam, upon condition of paying the amount of damages caused thereby. Appellant knew of the proceedings to erect the dam and lay out large sums of money in connection with the improvement in reliance upon such assurance. ITis attitude was thahof consent to the improvement from the beginning, subject to being paid adequate damages to thh land caused thereby, until the sum of $27,000 had been expended, and until successful insistence upon his legal rights would cause great hardship and irreparable mischief to respondent. In that situation, so long as respondent stood ready to make good to appellant all damage which the maintenance of the dam might cause to him, he had no standing in a court of equity to secure condemnation of the dam as a nuisance and its abatement. Something more than a mere license was involved. The case is unlike Huber v. Stark, 124 Wis. 359, 102 N. W. 12. Appellant agreed that in case of respondent making the contemplated improvement he might use the land in question so far as necessary therefor upon condition of paying the diminished value thereof caused by such improvement. True, the 'agreement was within the statute of frauds, but proceeding with the improvement till there was no opportunity for respondent to stop without suffering irreparable loss took the matter so far out of the statute of frauds as to permit equity jurisdiction to deal therewith to-prevent the statute being used as a means of perpetrating a fraud. An action for specific performance might have been maintained by respondent upon well-settled principles. McWhinne v. Martin, 77 Wis. 182, 46 N. W. 118, and cases there referred to; Wall v. M., S. P. & S. S. M. R. Co., supra. In the last case cited there was a partly written and partly verbal contract to convey to the railway company the right of way for its main track. Possession of the right of way was taken and a large expenditure of money made in reliance upon such contract. The court granted specific performance.

One of the prime essentials to using equity jurisdiction to estop one because of his conduct from insisting upon his legal rights as to another, is a change of position by such other, reasonably relying upon such conduct so that he would be prejudiced if a change of attitude upon the part of that one were given effect. We are unable to see such, reasonable reliance in this ease. Appellant’s daughter -was a minor. Certainly respondent' must have known she was incapable of authorizing any one to bind her in respect to the .land. The son was a little over age. He was competent to contract. If he in effect authorized appellant to act for him in the negotiations with respondent and knew, or had reasonable ground to know, of the agreement on the faith of which the erection of the dam and the making of the improvements progressed up to a short time before the commencement of this action and yet remained silent, he probably would be estopped from insisting upon his legal rights so long as respondent was willing to do full equity by him. But that is not before the court. Since there was the fullest opportunity to deal directly with him it does not seem that respondent was so far justified in neglecting to do so and relying solely upon the assumption of authority by appellant to represent him, as to preclude appellant from having compensation for the damages caused to his interest in the land, except upon condition of a release of those caused to the son’s interest being placed at the disposal of respondent. Whether the judgment was intended to make appellant’s recovery subject to such condition is not clear. It is ambiguous, but we need not determine' what it really means since the disposition that must be made of the case will leave the interest of Amos and Helena entirely out of view.

The general result is that so far as it affects plaintiff’s interest in the land the judgment is right, but so far as it deals directly or indirectly with any other interest therein it is ■wrong. The court should have determined the damages thereto as to appellant and dismissed the action upon condition of the same being paid into court for the benefit of appellant.

No new trial is necessary in order to protect the rights of all persons as here set forth. Upon the basis of damages found 'by the court as to the whole title to the land, the amount of appellant’s damage should be fixed at $171.50. The judgment must he modified so far as it deals in any way with the rights of Amos and Helena, and fails to adjudge specifically the past and prospective damage to plaintiff’s interest in the land and fails to so provide that the compensation to him will he without regard to any other interest.

By the Gourt. — The judgment appealed from is modified by fixing the damage to plaintiff’s interest in the land at $171.50, striking out all reference to the interests of Amos and Helena Julia and all condition as to appellant’s right to the compensation awarded him, except that of filing with the clerk of the circuit court a conveyance of the permanent right to use the land, as to his interest therein, mentioned in the judgment, and is affirmed as modified, — full costs in this court to go in favor of appellant. Either party may, if that be desired, re-enter the judgment in the court below redrawn so as to eliminate therefrom all portions stricken out as aforesaid.