It clearly appears from the pleadings that the only questiоn presented in this action is whether the damages to plaintiffs’ lands are of a temporary or a permanent nature. This issue is set forth by the complaint and the answer. Since the countеrclaim asks the court to grant relief which it is not authorized to grаnt in, this action, it must be set aside, and the reply is therefore of no effect. See cases cited at 14 Callaghan’s Wis. Dig., Pleadings, p. 282, sec. 224.
“It is a familiar rule that a demurrer searches the whole record and will be carried back to the first substantial defeсt; judgment will be given against the party who committed the first fault in pleаding, . . .” 41 Am. Jur., Pleading, p. 455, sec. 232.
“In conformity with the rule that a demurrer to one pleading searches the record and will be carried bаck to the first substantial defect in prior pleadings, it is the rule that a demurrer to a reply will, on proper motion, be carried back to the defendant’s pleading and will question its legal sufficiеncy. And if the defendant committed the first fault in pleading, the plaintiff is entitled to judgment. A demurrer *88 to a reply also puts in issue the sufficienсy of the plaintiff’s complaint or petition.” 41 Am. Jur., Pleading, p. 457, sec. 236.
If it is determined upon the trial that plaintiffs’ injuries are of a temрorary nature, they are entitled to the relief prayed fоr in their complaint. .
“If the cause is temporary, there is a right to successive actions.” 1 Am. Jur., Actions, p. 499, sec. 118. See Anno. L. R. A. 1916E, p. 1011 et seq.
If, on the contrary, it is determined that the damages are permanent, plaintiffs’ exclusive remedy is under sec. 32.04, Stats., which provides, in part:
“If any owner of property desires to institute condemnation proceedings, he shall present his verified petition thеrefor to the county or circuit judge of the county where thе land is situated.”
As pointed out in
Benka v. Consolidated Water Power Co.
(1929),
“The. allegations of the complaints and cоncerning which testimony was offered, clearly showed that the рlaintiffs relied, in seeking to recover damages from the defеndant, that they, as owners of real estate submerged or underminеd by the ponding of the water in defendant’s dam, were deprived, by rеason thereof, of a substantial use of the lands or sustained a substantial interference with their rights of possession. Such claimed damages, if properly chargeable to the backwater in defendant’s dam, was a taking of the property rights of plaintiffs in their respective real-estate holdings, within the meaning of that tеrm in the statutes regulating condemnation proceedings. [Citing cases.] . . .
“There being such a 'Statutory remedy furnished to plaintiffs in just such a position as here presented, namely, one where a dеfendant denies that there is any such taking and for that reason refusеs to commence condemnation proceedings, then it is clearly the legislative purpose to permit the owner of the lands to institute proceedings to once and for *89 аll recover the damages consequent upon such taking.” Sеe also Price v. Marinette & M. P. Co. (1928),197 Wis. 25 ,221 N. W. 381 .
By the Court. — Order modified and.affirmed; the counterclaim and reply are set aside; cause remanded to determine whether the injuries are of a temporary nature and the resultant damages thereof.