62 Wis. 558 | Wis. | 1885
We will first consider the demurrers to the counterclaims set up in the answer.
To determine whether the facts set up in the alleged counterclaims were pleadable as such in this action, depends upon the nature of the cause of action set up in the complaint. Briefly, the claim of the plaintiffs, as set out in their complaint, is that they were entitled to draw a certain quantity of water through the race described in the complaint to their mill, and for the purpose of so doing were legally entitled to have the race entirely unobstructed in its entire capacity, both as to width and depth. Their cause of complaint is that the defendants, in disregard of their rights, have placed an obstruction in said race by means of which they can and have obstructed the water in its flow through said race to their mill, as they have the right to have the same flow; and ask as relief that this obstruction be removed from the race. Their cause of action is in equity, and the relief asked is equitable. It is true, they allege damage by reason of the obstruction, and ask that the court, in granting the equitable relief to which they think themselves entitled, viz., the removal of the obstruction, will also award to them the damages they have suffered therefrom in the mean time. These damages, however, are incident t.o the cause of action, and not the cause of action. If the recovery of damages were the true cause of action, then the action would be an action at law and not one in equity.
If the counterclaims set up in the answer of the defendants in this action can be sustained as counterclaims, it must be under the following provisions of the statute in regard to counterclaims: “A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action,” etc. The plaintiffs’ cause of action does not .arise out of contract. Their claim is that they have the .right .to have the water pass from the dam to their mill
Now it does not need argument to show that the claim of the defendants against the plaintiffs does not arise out of the transaction which constitutes the plaintiffs’ cause of action. Their cause of action, if they have any, arises, not out of the acts which constitute the plaintiffs’ cause of action, but out of acts on the part of the plaintiffs done at a different time from the doing of the acts by the defendants which constitute plaintiffs’ cause of action, and are in no manner connected with plaintiffs’ acts, except that the defendants say that they did the acts complained of by the plaintiffs because the plaintiffs first did the acts complained of by the defendants. Now, if the defendants’ reason for doing the acts complained of justifies them in doing such acts, then they are a defense to the plaintiffs’ action; but as the acts complained of by the defendants do not arise out of such acts, but preceded them, they are not pleadable as a counterclaim under the first clause of the law above cited. The cases of Heckman v. Swartz, 55 Wis. 173, and Scheunert v. Kaehler, 23 Wis. 523, are conclusive upon this point.
Are the counterclaims set up by the answer of the defendants “ connected with the subject of the plaintiffs’ action ” within the meaning of the second clause of the statute above quoted? We think not. What is the subject of the plaintiffs’ action in the case at bar? Clearly it is the alleged wrongful acts- of the defendants in unlawfully interfering with the plaintiffs’ right to have the water flow unobstruct-edly through the race to their mill. The subject of the action is nothing more or less than the facts constituting the
The other question in the case arises on the order denying the motion for a temporary injunction asked by the plaintiffs. Whether this injunction should have been allowed or not, depends, in our judgment, upon the effect which should
In pursuance of this order, the commissioners performed their duty in respect thereto, and on the 3d day of February, 1815, made a report showing that they had caused to
“ For Milton Blanchard, in his flume before his wheels, of proper length to discharge over it a vein of water twenty-four feet in width, free from all contractions; they have erected for Herman Miescke an adjustable weir before his wheel, of proper length to discharge over it a vein of water twenty-three 58-100 feet in width, free from all contractions; they have erected an adjustable weir for defendants John L. Smith and Joseph B. Bennett, before their wheel, of proper length to discharge over it a vein of water sixteen 53-100 feet in width, free from all contractions; and they have erected an adjustable weir for defendants Frederick Miller and Jonas H. Sleeper, before their wheels, of proper length to discharge over it a vein of water thirty feet in width, free from all contractions. All the adjustable weirs on the east side are so constructed that the lowest point to which the crest-of any of them can be brought, is eighteen inches below the crest of the main weir. They may be raised to a point level with the top of the dam, except defendant Blanchard’s weir, which can be raised only to a point twelve inches below the level of the top of the dam. Defendant Blanchard owning the surplus water on the east side, it was not deemed necessary to construct his weir to be raised any higher. The adjustable weirs on the east and west side are all constructed alike; the level marks are all on the same elevation, and the mode of measurement of water is the same on all, and they are so constructed that all the parties will receive the respective quantities of water to which they may be entitled, on a level line six inches below the crest of the main weir. All the adjustable weirs must be set far enough below this level line to give the*568 proper quantity of water the respective parties may be entitled to at the time the weirs are set, and each weir must have a fall of six inches from the crest of the weir to the surface of the water below, in order to accurately measure the quantity. In case there is a surplus of water in the river after the several parties have received their full quantities, it will not be necessary to keep the above level line six inches below the crest of the main weir, but keep a fall over the main weir of six inches between the surface of the water in the dam and the surface of the water in the race or flume below the main weir; and in.order that the parties entitled to draw the surplus water may receive the full benefit from the same, the parties entitled to the preferred water must raise their own private weirs and adjust them so as draw the proper quantity they are entitled to, that the surplus may flow to the parties having the right to the same. The commissioners have instructed all the parties how to set and operate their weirs, and also how to measure the water over the main weirs. In case serious differences should hereafter arise between them in respect to operating the weirs or the measurement of the water, they would recommend the appointment of a commissioner to take charge of and operate them.”
The adjustable weir designated as the one belonging to Miller and Sleeper, is now the one owned by the plaintiffs in this action, and Blanchard’s weir is the one now owned by the defendants herein; and the defendants are also entitled to any surplus water there may be on the east side of the river after fii’st supplying the quantity of water owned by plaintiffs and others mentioned in the proceedings therein. It also appears that the race from the dam down to the plaintiffs’ mill, on block 4-0, was constructed as it now is as early as 1872, and was an open race from the dam down to the plaintiffs’ block 40, having, no obstructions of any kind therein at the time the permanent and adjustable weirs were
It seems to us very clear that the judgment of partition, by a clear inference, required the race from the dam past the several weirs of the parties rightfully entitled to draw water from the same, should remain clear and unobstructed by any one, and that the court and commissioners supposed such weirs, when used as directed by such judgment, would protect all parties. And to our minds it is not a sufficient answer to this proposition that the defendants say that the obstruction they have placed in the race is not intended to be so used by them as to interfere with the rights of the plaintiffs to the water in said race. The obstruction is so constructed that it can be readily used so as to destroy the rights of the plaintiffs; and, being under the absolute control of the defendants, it is a constant threat of destruction
The court, in the partition judgment, having prescribed the method of using the water from the race in a manner which it supposed would best protect the rights of all parties, the parties must abide by that method until it is changed by the court, and one party cannot be allowed to interfere with the use of the water in a manner different from that prescribed, because he considers himself aggrieved by the regulation adopted by the court, and deems some other method better adapted to the purpose. ¥e think the placing of the frame and gates in and across the race, between the dam and the mill of the plaintiffs, was unauthorized by the judgment in the partition action, and that the plaintiffs 'are entitled to have the same removed, and consequently to a temporary injunction pending the action. By this we do not intend to intimate that the arrangement made by the
In holding that the defendants cannot, in this action by the plaintiffs to prevent them, from maintaining an unlawful obstruction in said race, counterclaim for injuries sustained by the defendants from the unlawful acts of the plaintiffs in using water which belongs to the defendants, and to enjoin them from such unlawful use in the future, and that they cannot by way of counterclaim demand the judgment of the court legalizing the maintenance of such obstruction, we do not determine that they may not maintain an action against the plaintiffs, based upon the judgment of partition, to recover damages for any unlawful use of the water in said race, and to enjoin any such unlawful use in the future; nor do we hold that the defendants may not, upon a proper application to the court, and showing the necessity therefor, obtain a modification of the partition judgment, so as to more effectually protect their rights in said water power. The objection to any modification of the judgment in this action is apparent from the fact that all the parties interested in such modification are not before the court. If any
By the Court.— The orders of the circuit court appealed from are reversed, and the cause is remanded for further proceedings according to law.