Wendlandt v. Cavanaugh

Lyon, C. J. Much testimony was introduced on the trial, and there is considerable conflict in the statements of some of the witnesses. We have examined the testimony sufficiently to satisfy us that it supports the findings of the learned circuit court. Statement and discussion of the testimony in this opinion would be profitless, and we refrain therefrom. Three questions must be determined, and it is believed that they cover the whole case. These are: (1) Was the demurrer to the counterclaim properly sustained? (2) Did the court properly deny the demand of defendant for a jury trial, and properly overrule his demurrer ore tenus to the complaint ? Or, stated in another form, was the action properly brought in equity? And (3) is the judgment supported by the findings? [261] 1. Was the demurrer to -the counterclaim properly sustained? The counterclaim is for damages accruing to defendant by reason of the dam alleged to have been built by plaintiff in 1880 across the ditch on the line between the lands of the parties, and to restrain plaintiff from maintaining such dam. If a proper counterclaim, it is so because it states a cause of action arising out of the transactions set forth in the complaint as the foundation of plaintiff’s claim, or is connected with the subject of the action.' R. S. sec. 2656. Such transactions are the raising to the surface of the subterranean water by digging the fountain, and gathering the same and water from certain springs and the surface water in the sink hole or basin, and then precipitating all of it in a body upon plaintiff’s meadow through the ditch dug by defendant in 1888. The subject of the action is the damage caused thereby to plaintiff’s land. It is difficult to perceive the connection between the act of plaintiff in 1880 and the acts of the defendant in 1888, or how one can properly be said to arise out of the other. But, however this may be, there is a feature in the case which prevents a reversal, even though the demurrer to the counterclaim should have been overruled. The alleged facts which are the foundation of the counterclaim were also pleaded as a defense to the action, and are negatived by the court in the second finding of fact. Hence, had the demurrer been overruled, still the counterclaim would have failed, and the error in sustaining the demurrer thereto (if it was error) thus became entirely immaterial. 2. Does the complaint state a valid cause of action in equity? The action was brought under sec. 3180, R. S., as amended by ch. 190, Laws of 1882 (S. & B. Ann. Stats, sec. 3180 1 ). In Remington v. Foster, 42 Wis. 608, it was [262] held that an action under the corresponding section in the former statutes was an action at law, and that, because the statute corresponding with sec. 3181 gave the remedy of abatement of the nuisance complained of in such action, no action in equity for such abatement could be maintained. Thus the law remained until the enactment of ch. 190, Laws of 1882, which restored the equitable remedy in the several cases therein specified. One of these is, “ when the injury is continuous and constantly recurring.” The court has found substantially that this is such a case. We conclude the action was properly brought in equity. Denner v. C., M. & St. P. R. Co. 57 Wis. 218; Fraedrich v. Flieth, 64 Wis. 184. It is none the less an action in equity because damages for past injury by reason of the nuisance are claimed and awarded. Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co. 79 Wis. 297. 3. Is the judgment supported by the findings? Such findings are to the effect that there was a low place or basin on defendant’s land in which water caused by rains and inciting snow was wont to collect, 'much of which soaked into the ground or was wasted by evaporation; that ditches were dug which conducted the water from springs into such basin; that the quantity of water therein was also increased by a fountain dug by defendant which brought the subterranean water to the surface and into such basin; and that the defendant dug a ditch through an elevation of the ground on his own land near the plaintiff’s line, and through it precipitated the water thus collected [263] in such basin or pond directly upon plaintiff’s land, creating a new pond of water thereon, greatly injuring his meadow and threatening thirteen acres thereof with destruction. The findings negative any consent by the plaintiff to the digging of such ditch or the existence there of any watercourse. The above findings bring the case directly within the rule of Pettigrew v. Evansville, 25 Wis. 223. That case has been much discnssed and somewhat criticised in many cases before this court since it was decided, and in some respects the doctrine thereof has been modified, especially as regards the rights of municipalities to dispose of surface water in the improvement of streets. Most of these cases and numerous others are cited by Justices Oassoday and Put-ney in the opinion of the former in Heth v. Fond du Lac, 63 Wis. 228, and of the latter in Champion v. Crandon, 84 Wis. 405. But in an action between private individuals, in which no question of public duty or authority is involved, none of these cases question the accuracy of the rule of Pettigrew v. Evansville, correctly stated in a headnote to that case, as follows: “ The owner of land on which there is a pond or reservoir of surface water cannot lawfully discharge it through an artificial channel directly upon the land of another, greatly to his injury.” Under that rule the findings herein fully support the judgment. By the' Court.— The judgment of the circuit court is affirmed.