112 Wis. 15 | Wis. | 1901
The defendant contends that the complaint does not state facts sufficient to constitute a cause of action. This is put upon the ground that such commercial railway, with a single track, had been constructed and operated by the defendant for two years prior to the commencement of this action, with the knowledge and acquiescence of the plaintiffs, and hence with their tacit consent, and therefore that the plaintiffs could not object to such proposed
“ But with no provision for condemning lands or acquiring the right of way, nor for joining and uniting with other railways in forming crossings, intersections, and connections,, nor in adjusting differences in case of disagreement, as required by statute in the case of steam railways.”
This is made more plain by more recent cases in this court. Zehren v. Milwaukee E. R. & L. Co. 99 Wis. 83, 89, 98, 99; Krueger v. Wis. T. Co. 106 Wis. 103, 104; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 511, 512. The result is-that the defendant entered upon Lincoln avenue and laid its. single track, and then started to lay its double track, making excavations, obstructing the street, and interfering with the rights of the respective plaintiffs in passing to and from their homes and places of business, as stated, without any authority of law for such invasion of such private rights. There can be no question but that, in the absence of any statute for condemnation, the abutting owners in such a case may resort to the ordinary actions at law or in equity. Davis v. L. C. & M. R. Co. 12 Wis. 16; Ford v. C. & N. W. R. Co. 14 Wis. 609; Powers v. Bears, 12 Wis. 213; Shepardson v. M. & B. R. Co. 6 Wis. 605.
The principal object of this action is to abate such nuisance, common to all the plaintiffs, and to restrain the defendant from further erecting any such obstructions upon, or in any manner interfering with, the lands of the plaintiffs, or any of thein. It is well settled in this state that, “ where the erection of a nuisance will cause private and special damage to each of several persons, they have a common right to prevent its erection, and may join as complainants in a bill for that purpose, or to abate it after it is-
The other ground of demurrer is that several causes of-action have been improperly united. As indicated, the respective plaintiffs own twenty-nine different lots in severalty, abutting on Lincoln avenue. One has a frontage of only
“ It is clear there would be a misjoinder of causes of action if the plaintiffs sought any relief for the mere injury ta the soil and freehold of the plaintiff the Grand Rapids Water Power Company. No such relief is, however, sought by the plaintiffs or prayed for by them in the complaint. . . . The only relief prayed for is a perpetual injunction restraining the defendant from diverting the water of said river from its accustomed flow to the plaintiffs’ mills and water powers. No damages are claimed for the injury done to the soil and freehold of the Grand Rapids Water Power Company. There is, therefore, no improper joinder of causes of action.”
It is stated by a distinguished author on such subjects that- “ where several persons are injured by a common nuisance, although varyingin degree, but having a common effect, they may join in a bill for an injunction, hut there ecm he no recovery of damages.” 2 Wood, Nuisances (3d ed.), 1160, § 791. As the result of an able opinion by Chancellor Walworth in one of the cases cited and followed by Chief Justice Whiton in Barnes v. Racine, 4 Wis. 454, it was held that “ there is no inflexible rule as to joinder of parties in the
By the Court.— The order of the circuit court is reversed, and the cause is remanded with direction to overrule the first ground of demurrer and sustain the second ground of demurrer, and for further proceedings according to law.