106 Minn. 365 | Minn. | 1908
Defendants interposed a demurrer to plaintiffs’ complaint, and appealed from an order overruling it. It appears from the complaint that plaintiffs, four in number, severally own adjoining tracts of land which constitute their separate and distinct farms, in no part
There is no question but that the facts stated in the complaint, if found to be true, entitle plaintiffs to an injunction restraining the maintenance of the ditch, and also to such damages as they separately suffered by reason of the unlawful acts of defendants. But plaintiffs have no joint or common interests in the damages sustained, and it is clear that their separate claims in that respect cannot be joined with the cause of action for the equitable relief, in which they do have a joint and common interest. This was affirmatively held in Grant v. Schmidt, 22 Minn. 1. The question did not there arise upon demurrer; but the rules of law applicable to such cases were laid down, and it controls the case at bar. The facts are substantially identical in the two cases, and to sustain plaintiff’s contention that the damages claimed may be awarded as an incident to the equitable relief would in effect overrule that decision. This we are not disposed to do. The rule there announced is supported by the authorities generally. (Wood, Nuisances [3rd Ed.] 1160; Bliss, Code PI. [3rd Ed.] § 76; Brady v. Weeks, 3 Barb. [N. Y.] 157; Palmer v. Waddell, 22 Kan. 352; Grand Rapids v. Bensley, 75 Wis. 399, 44 N. W. 640; Hawarden v. Youghiogheny, 111 Wis. 545, 87 N. W. 472, 55 L. R. A. 828), and is in accord with our statutes on the subject of the joinder of causes of action (section 4154, R. R. 1905).
Counsel for plaintiffs call attention to. Gilbert v. Boak Fish Co., 86 Minn. 365, 90 N. W. 767, 58 L. R. A. 735, and urge that, because it was there held" that the right to an injunction abating a nuisance and damages for its maintenance up to the commencement of the action constitute but one cause of action, plaintiffs are bound to include their damages in this case or waive them. That case is not in point. The decision there made was based upon the general proposition that a judgment in an action is a bar to another suit as to all issues or questions which were or could have been litigated therein. It was accordingly held that the plaintiff’s claim for damages for the nuisance there complained of, not only could, but should,-have been made in the action to abate the nuisance. In the case at bar the damages claimed cannot, under the rule of the Schmidt case, be recovered in this action, and plaintiffs will not be barred from their right to maintain separate actions therefor.
It follows that the demurrer should have been sustained as to separate claims for damages of the several plaintiffs. Anderson v. Scandia Bank of Minneapolis, 53 Minn. 191, 54 N. W. 1062. The complaint, however, states a joint cause of action for the abatement of the nuisance, and it may be amended by eliminating the claim for damages (Brady v. Weeks, 3 Barb. [N. Y.] 157), and the action proceed as one for the equitable relief prayed for.
Order reversed.