50 Wis. 308 | Wis. | 1880
This suit is brought to recover damages for injury to the premises of the plaintiffs, and to their use and enjoyment of the same, caused by the manner in which the business of the defendants has been carried on in and about a tannery situated upon the premises of the defendants. The defendants set up, in substance, by answer in defense of the action and in justification of such pretended nuisance, that they and those under whom they claim have carried on such business in the manner complained of for more than twenty years, and expended large sums of money in constructions necessary for said business, under the license and consent of the plaintiffs and those under whom they claim, and with their acquiescence. They answer, also, as a counterclaim, setting up substantially the same facts, and pray for judgment establishing their right to carry on said business in the manner complained of under such license, consent and acquiescence, and that the plaintiffs be enjoined from prosecuting this suit and another suit pending, brought by them against these defendants and one Nathan E. Allen, Jr., and from commencing any future actions against them, or either of them, or their heirs
It is to be regretted that this case is not in the condition in which this able discussion could be made available in the final determination of all of the questions which may arise in any stage of the litigation in respect to the same subject matter, which would put an end to this expensive and vexatious controversy. But it appears from the answer that, before this .suit was brought, another party in interest with the defendants had intervened. 'One Nathan R. Allen, Jr., became a third owner of the tannery complained of, January 1, 1878, and is directly interested in the abatement prayed for, in the answer in defense of the action, and in the injunction prayed for in the counterclaim. It is obvious, without any discussion, that neither prayer can be granted in the absence of such a necessary party. McConihe v. Hollister, 19 Wis., 269. The facts stated in defense and for affirmative relief being substantially the same, the matters of the counterclaim, as such, are only necessary in this action to sustain the prayer for equitable relief. Such a defense, although in part equitable, may be interposed in an action at law. Section 2657, R. S. It follows that the demurrer to the counterclaim was properly sustained.
By the Co’urt.— The order of the circuit court sustaining the demurrer to the counterclaim is affirmed, with costs, and the cause remanded for further proceedings according to law.