Seymour v. Carpenter

51 Wis. 413 | Wis. | 1881

Lyoh, J.

The result of an action brought under chapter 146, R. S., is, or may be, to vest in the defendant a perpetual right to flow the land of the plaintiff. The compensation therefor may be the payment of a sum of money annually, or a gross sum, as the plaintiff' may elect. Sections 3381, 3387. The payment of the compensation fixed by the jury, whether annual or gross, gives the defendant an easement or servitude in the land flowed. Uo action at common law can be maintained for past damages occasioned by the flowing. Such damages must be determined in the same action in which compensation for future damages is assessed and the right of future flowage established. Sections 3377, 3381. The statute gives the right of action to “ any person whose land is overflowed or otherwise injured ” by a mill dam. Section 3377. It does not, in terms, confine the right of action to the owner of the legal title. It only requires that the plaintiff shall state in his complaint his interest in the land flowed or injured. Section 3378. In this case the plaintiff Seymour holds the legal title to the land as security for unpaid purchase money. The plaintiff Hunter is the owner of the equitable title, and in possession of the land. The interest of each in the land is somewhat contingent. If Hunter pays for the land according to his agreement, he will be entitled to a conveyance by Seymour of the legal title, and will thus become the absolute owner of the land. If he makes default, Seymour may reclaim the possession and extinguish the outstanding equitable title. As the title now stands, neither Seymour nor Hunter is the absolute owner, but the interests of both, joined together, constitute an absolute indefeasible title to the land. Hence, the land alleged in the complaint to be flowed or injured by tbe defendant’s mill dam is the land, not of Seymour alone or Hunter alone, but of Seymour and Hunter together; and, under the statute above cited, as well as under general rules of law, they may, and perhaps must, join in this action. See Schiffer v. City of Eau Claire, ante, p. 385.

There being nothing in the statute which restricts the right of action to the owner of the legal title, the case of School Districts v. Edwards, 46 Wis., 150, is in point. There, several school districts entitled to a specific fund, in unequal and unascertained proportions, were allowed to join as plaintiffs in an action to recover the same. Here, two persons having an interest in the land flowed, not as joint owners or tenants in common, but whose interests are relatively contingent and together constitute the whole title, join as plaintiffs in an action given by statute to the person whose land is flowed or injured; that is, to the owner of the land. As the ease now stands, both plaintiffs are also interested in the recovery. Seymour is interested to the extent of the unpaid purchase money. Humber is interested in the whole sum recovered, because any sum which, in the distribution of the compensation recovered, is awarded by the court to Seymour, goes to pay Hunter's debt and perfect his title, and the balance (if any) goes directly to him. Their respective interests may be changed by payment or default before distribution, but the court will make distribution as their rights shall then appear. The principle of the two cases seems to be the same. In each case all persons interested in the subject matter of the suit, and in the judgment which may be recovered therein, join as plaintiffs, although the amount of their respective interests may not be definitely ascertained until after judgment.

In view of an argument in the brief of the “learned counsel for appellants, based upon the dissenting or supplemental opinion of the late learned chief justice in the case of School Districts v. Edwards, it is proper to say that, had the improper joinder of causes of action been assigned as a ground of demurrer in that case, we think the result would have been the same. The demurrer would in like manner have been overruled. There can be no necessity for a multiplicity of actions where the subject of litigation is an undivided fund, and the right of each claimant thereto rests exclusively upon grounds common to all. Moreover, there was, correctly speaking, but a single cause of action in that case, to wit, a cause of action to recover the common fund. So this action is to recover compensation for flowing, and for the permanent right to flow, the land described in the complaint. It is a single cause of action, without regard to the number interested in the recovery or the nature of the respective interests.

Our conclusion is, that the action was properly brought by Seymour and Himter jointly, and that there is no improper joinder of causes of action in the complaint. No other question was argued on this appeal.

■By the Oourt.- — ■ The order of the circuit court, overruling the demurrer to the complaint, is affirmed.