Grand Rapids Water Power Co. v. Bensley

Tatloe, J. On the hearing in this court, the learned counsel for the defendant made no argument to sustain the demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. The arguments of the learned counsel are limited mainly to a discussion of the first and second grounds stated. It is said that several causes of action have been improperly joined. The contention is that the complaint states a cause of action for a trespass for entering upon the land of the plaintiff the Grand Rapids Water Power Company, and digging up and removing the rocks and soil therefrom, and that the complaint shows that the other plaintiffs have no interest in such land or soil, and that this cause of action is united with a cause of action for diverting the water of the Wisconsin river from the water powers and mills of all the plaintiffs. It is clear there would be a misjoinder of causes [402] of action if the plaintiffs sought any relief for the mere injury to 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 facts as to the entry, etc., on said lands of the Grand Rapids Water Power Company are alleged, not for the purpose of showing that the Grand Rapids Water Power Company is injured by the mere entry and removal of the rocks and soil of such plaintiff, but as showing the means used by the defendant in diverting the water of the river from its water power, and from the mills and water powers of the other plaintiffs. 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. The second cause of demurrer is that there is a defect of parties plaintiff, because it appears on the face of the complaint that the plaintiffs who have joined in the action are not united in interest, and are only joined because they are interested in the relief sought, and because it also appears on the face of the complaint that there are other persons interested in the relief sought who are not joined as plaintiffs or defendants. The claim made by the learned counsel for the defendant is that, in an equitable action to restrain the diversion of flowing water, all persons who are interested in the subject matter of the litigation must be made parties, either as plaintiffs or defendants, and consequently all persons who have riparian rights on any of the channels of the Wisconsin river from which the defendant, by her acts, unlawfully diverts the flow of the water, must be joined in the action. The same question was raised by the learned counsel for the defendant in Kaukauna W. P. Co. v. G. B. [403] & M. Canal Co., ante, p. 385, argued shortly before this case, and in which an opinion by Justice Cassoday is now filed. In that case the point made by the learned pounsel for the appellant in this is decided against his contention, and rules the decision in this cáse. Th'e reasons for the ruling of the court will be found sufficiently stated in the opinion by Justice Cassoday. The claim that the Jackson Flouring Mill Company is a necessary party defendant seems to.be without any foundation upon the facts stated in the complaint. There is no charge made in the complaint that such company is doing anything in the way of diverting the water from the plaintiffs, nor that it is in any way aiding and assisting the defendant in causing such diversion, nor that the company will be in any way benefited by such diversion. The only reason which can possibly be urged for making it a party .defendant is the reason assigned for making the other riparian owners parties to the action, on the ground that such company may have an interest in the controversy. The overruling of the second ground of demurrer in effect overrules the third ground. The two objections, upon the facts stated in the complaint, must either be sustained or overruled for the same or similar reasons. Ve think the demurrer was properly overruled. By the Court.-— The order of the circuit court is affirmed, and the cause is remanded for further proceedings according to law.