Zweig v. Horicon Iron & Manufacturing Co.

By the Court, Cole, J. This action is brought for the purpose of removing the dam of the Horicon Iron and Manufacturing Company, which overflows the land of the appellant. The company claims the right to maintain the dam by virtue of an act of the legislature of this state. Chap. 133, Pr. Laws of 1854. The appellant, after resorting to the remedy given by the seventh section of the charter, — obtaining judgment and issuing execution thereon, which was returned unsatisfied, —commenced this suit to abate the dam. The circuit judge, considering it doubtful whether the appellant had exhausted his legal remedies, for the reason that it appeared from the evidence given on the trial, that the company had property liable to execution, dismissed the complaint with costs. The fact that the sheriff had returned the execution with his indorsement thereon, that after diligent search he could find no property belonging the company whereon to make the whole or any part of the writ, was, we thinkj sufficient evv [369] dence of tbe insolvency of tbe corporation, and that no satisfaction for damages could be obtained against it by the ordinary processes of tbe court, and authorized the the appellant to commence this suit. It is true that it likewise appeared upon the trial that there were other defendants, lessees of the company, who were interested in preventing the relief demanded, and who had made valuable improvements at Horicon upon the faith that the dam was legal and could be maintained. This circumstance, although it did not go to the right of the appellant to bring the suit, was nevertheless a proper matter to be considered in determining the question, whether the dam should be at once removed. We therefore think the circuit court, when it appeared that the company had property liable to sale upon execution, might have declined to remove the dam at once, as such a proceeding would cause great mischief to those parties, and stayed proceedings until another and further effort had been made to collect the judgment upon execution. For, while it might well be held, if the company were the only party interested, that the return of the sheriff was conclusive as to its financial condition, yet it does not seem to be going too far, out of regard for the interests of the lessees, for a court of equity to refuse to remove the dam while there was a reasonable prospect that the appellant might obtain satisfaction upon an alias execution. Should that effort prove unavailing, then we think there would be presented a clear case of irreparable injury, for the redress of which a court of equity should interfere. The circuit court seemed to think that this case presented essentially the same questions as those involved in Sheldon vs. Rockwell, 9 Wis., 166, and must be ruled by it. In that case the court refused to grant an injunction to restrain the rebuilding of the dam, but upon grounds and for reasons which do not exist here. In that case nineteen years had elapsed between the building of the dam and the commencement of the suit, during which time the injured party had taken no steps; [370] to enforce bis rights by an action at law. In tbe mean time, tbe dam bad been destroyed several times, and rebuilt, and valuable improvements bad been made in connection witb tbe water power. The plaintiff slept upon bis rights all this time, not attempting to recover damages resulting from tbe flowage of his land, either by bringing his action on the case or pursuing bis remedy under tbe mill dam act, which was in force from 1842 to 1849. His first appearance was in a court of equity, asking that the dam should be removed. The land here was overflowed by the company by virtue of its charter. That charter authorized the company to overflow the land of others only upon the condition that it paid such a sum as arbitrators might award or a jury might give for damages caused by its dam. The company refuses to comply with the obligations imposed upon it by the clear language of its chartes. Upon what ground can it insist upon a right or privilege given by an act of the legislature, when it repudiates the conditions upon which the right is granted ? Besides, where land is overflowed by virtue of an act of the legislature, the owner is naturally thrown off his guard, and will not enforce his rights with the same promptness which he would under other circumstances. From the. fact that the company proceeds to act under its charter, he assumes that it will comply with its provisions in regard to making compensation for damages rendered. In this case the appellant took steps in 1858 or 1859 to have his damages assessed by arbitrators chosen according to section 7 of the charter. He prosecuted his action to final judgment, and sued out his execution. His rights are fully established at law, and, on the return of the execution unsatisfied, he had the right to assume that his remedy was exhausted, so far as obtaining pecuniary compensation for his damages was concerned. What other course remained open to him but to apply to a court of equity to abate the dam, which was a continuing trespass and totally destroyed the use and enjoyment of his property? The company certainly have no right to over371 Sow bis land, unless they pay tbe damages caused thereby. In Hawkins vs. Lawrence, 8 Blackf., 266, tbe court say that a company remaining in possession of land after default with respect to tbe payment for tbe same as prescribed by tbe charter, is to be considered as a trespasser ah initio. Tbe injury, as already observed, is permanent, and amounts to a total destruction of tbe estate; and the ordinary legal remedies afford no adequate satisfaction. See Jerome vs. Ross, 7 Johns., 314. Tbe appellant has not slept upon bis rights, nor been guilty of any undue delay in enforcing them. For these reasons, tbe principles and doctrine of tbe case of Sheldon vs. Rockwell do not apply. If tbe company wish to overflow tbe appellant’s land, let it pay tbe judgment which be has obtained for damages, and thus comply with its charter. And if it neglects to pay, or is insolvent, then surely he has tbe right to have his property restored to him, so that be can use and enjoy it. It is suggested that tbe existence of tbe dam is a matter of general concern,' and that its destruction would materially affect tbe public, or at least tbe interests of many persons who nave made improvements upon the idea that they could use and enjoy that water power. But we cannot for these reasons disregard tbe rights of the appellant. 'Under tbe circumstances of this case, be is entitled either to have satisfaction of bis judgment, or tbe dam abated. For it is contrary to tbe first principles of natural justice, as well as the letter and spirit of our constitution, that private property should be taken for public use without compensation. And if tbe appellant cannot obtain compensation by tbe ordinary course of law, we think be is entitled to have tbe dam removed. For these reasons tbe judgment of tbe circuit court is reversed, and tbe cause remanded with directions to that court to retain tbe suit until tbe appellant has made a further "effort to collect bis judgment by levy and sale of the property of tbe company upon an execution. Upon tbe company paying [372] that judgment and tbe costs of tbis suit, it should be dismissed. Otherwise the appellant should have the relief demanded in the complaint. Judgment reversed, and cause remanded for further proceed ings in conformity with this decision.