Karns v. Allen

KeRWIh, J. 1. Error is assigned because the court gave judgment against all defendants for the entire damages resulting from the erection and maintenance of the dam. This error is based upon the contention that in any event the defendant corporation could only be liable for damages accruing after the sale to it, and that the defendants Nathan and Charles W. Allen could only be liable for damages accruing before sale to the corporation. In the supplemental complaint, made and filed after sale to defendant corporation, it is alleged upon information and belief that said defendant corporation, as an incident to the conveyance, assumed all the rights, duties, and liabilities theretofore in any manner belonging to or resting or imposed upon the defendants Nathan and Charles W. Allen in respect to any and all the matters referred to in the original complaint and out of which the causes of action stated therein had their origin. It is claimed on the part of the appellants that this allegation was denied by the answer of the corporation and no proof made- of such allegation upon the trial, while on the part of the respondents it is insisted that such allegations were admitted by the pleadings, hence no- proof was necessary. The court made no finding upon this subject and we find no proof in the record sustaining such allegations. "VVe must therefore deter — 54 — mine the question, upon the pleadings. As appears, from the statement of facts the original complaint was made against Nathan and Charles W. Allen and they answered. After-wards the complaint was amended, and the defendants Nathan and Charles W. Allen amended their answer thereto.. The defendant corporation was brought in and made a party defendant after sale and after the action was at issue upon the complaint and answer of the original parties thereto. The answer to the original complaint contained, among other things, a general denial, and upon the trial after the supplemental complaint had been made and served, setting forth the liability of the defendant corporation, such corporation adopted, by leave of court, and, so- far as the record shows, without objection, the answer of the defendants Nathan and Charles W. Allen as its answer in the case. The question, therefore, arises whether the allegations of the supplemental complaint were put in issue by the adoption by they corporation of the answer of the defendants Nathan and Charles W. Allen to the original complaint. The question is somewhat novel and not free from difficulty and we have been unable to find any authority upon the subject. The material allegations of the supplemental complaint are the sale of the property to the defendant corporation and assumption of liability by it. All other allegations in the action were put in issue by the original complaint and answer, and the opinion of the court upon the whole record is that when the corporation appeared in court and adopted the answer of the defendants Nathan and Charles W. Allen, which contained a general denial, it was understood and intended by all parties to the action that such answer was intended to be and was an answer to the supplemental complaint. "WetbiuV that the recitals made by the trial court in the judgment and findings support this idea, and that the case was tried upon the theory that the allegations of the supplemental complaint were in issue. The court found upon sufficient evidence that — 55 — in the spring of 1902 the defendants Nathan and Charles 17. Allen, as copartners, unlawfully and -without the consent of plaintiffs or their predecessors in title constructed the dam in question, and afterwards wrongfully rebuilt the same and maintained it until August 1, 1905, when they sold and conveyed the property upon which said dam was situate to the defendant N. JR. Allens Sons Company, which company has ever since remained in possession of such property and has continued to maintain since said purchase and threatens to 'maintain in the future said dam. The dam having been constructed and maintained by the defendants Nathan and Charles TV. Allen up to the time of sale to the defendant corporation, and there being no proof of assumption of liability by defendant corporation, we find nothing in the record which would justify a judgment for damages against the corporation accruing in consequence of sugh nuisance before the sale. It appears that since the. sale the dam has been maintained in substantially the same manner as before by the corporation defendant, the defendants Nathan and Charles W. Allen acting as officers, namely, president and vice-president, of said corporation defendant and carrying on the business for such corporation and maintaining the nuisance. So, upon the established facts, the defendants Nathan and Charles W. Allen continued liable for the maintenance of the nuisance after the sale. 2 Wood, Nuisances (3d ed.) § 834; 21 Am. & Eng. Ency. of Law (2d ed.) 719, and cases cited. 2. Error is assigned because the damages allowed for permanent injury to thé freehold are excessive. The land in question is less than half an acre in area and the evidence shows that it was valuable principally for agricultural purposes. It had been used prior to the erection of the dam for a garden. The plaintiffs’ witness testified on direct examination that it was worth before the nuisance was created from $800 .to $1,000, but afterwards, on cross-examination, testi — 56 — fied that it was worth from $600 to $800, and that it was worth but little for anything but garden purposes, and stated that he could not say what it was worth after the injury by the dam. The plaintiffs’ evidence shows that the soil was washed away and the land gullied out in such manner that it would cost more than it was originally worth to put it back in the condition it was before the injury. The witnesses on the part of the defendants placed the value of the land at the time of trial at about $400. This is the only evidence respecting the exact value of the land at the time of trial and after the injury caused by the erection and 'maintenance of the dam. True, the evidence on the part of the plaintiffs is to the effect that it was only valuable for garden purposes, yet the principal witness for the plaintiffs testified that he could not say just what it was worth at the time of trial. It is very difficult to see in this condition of the evidence how the finding of the court that the injury to the freehold was $900 can be sustained. It is very obvious from all the testimony that the land was of some value at the time of trial, even if it be conceded that it was washed away and gullied out in the manner described by plaintiffs’ witnesses, and that before the injury it was valuable especially for garden purposes. The testimony as to the value before and after the injury is quite unsatisfactory. As before observed, the only definite testimony as to value after the injury is that of defendants’ witnesses, who place it at $400. So upon this state of the record we think it clear that the damages allowed were excessive, and after a careful examination of the evidence the court is of the opinion that the item of $900 damages for injury to the freehold should be reduced to the sum of $600. 3. It is also claimed that the sum awarded for loss of rentals is excessive and that the finding in that regal'd rests wholly upon opinion evidence. But upon this point we think the evidence competent, and we cannot say that the finding is against the clear preponderance of the evidence. There is ample evidence that the rental value was greatly depreciated — 57 — 'by the noxious odors caused by the maintenance of the dam. 'True, there is a sharp conflict as "to whether the dam increased these odors, but there is considerable evidence that it did, and we cannot say that the finding is against the clear preponderance of the evidence. There is evidence of the -rental value of the property in the absence of the nuisance, •and evidence of what it actually rented for during the continuance of the nuisance, and such evidence fully supports the finding of the court below to the effect that there was a loss in rentals to the amount of $700 caused by the maintenance of-the nuisance. 4. Error is also assigned because the court awarded $500 exemplary damages. This finding is assailed upon the ground that no sufficient showing was made entitling plaintiffs to exemplary damages, even if the same were recoverable; and further, that a court of equity cannot give exemplary damages. Upon the proposition that a court of equity should not award exemplary damages no authority is cited by counsel on either side directly in point except 1 Sedgw. Dam. (8th ed.) § 371, to which is cited in support of the text Bird v. W. & M. R. Co. 8 Rich, Eq. 46. Counsel for respondents contend that the general doctrine, namely, that when a court of equity takes jurisdiction it will give complete relief, and where necessary assess damages, authorizes the court in this case to award exemplary damages. Of course the general rule that where a court of equity takes jurisdiction it will award full relief is well understood, but the'question is whether a court of equity should in any case award exemplary damages, or is it confined simply to giving compensatory damages ? After considerable search we have been able to find no case where exemplary damages were allowed by a court of equity; and while our investigation shows a great dearth of authority in point on the subject, the cases which in any way touch the question appear to lean to the doctrine that a court of equity -should award only compensatory damages. This rule seems to be in harmony with the general doctrine that equity juris — 58 — diction is invoked for the purpose of administering equitable relief in cases where courts of law are without power to' grant adequate relief. And where in equitable actions it becomes necessary to award damages, only compensatory damages should be allowed. 2 Suth. Dam. (3d ed.) § 392;. People's Nat. Bank v. Kern, 8 Pa. Dist. Rep. 72; Sanders v. Anderson, 10 Rich. Eq. 232; 2 Beach, Mod. Eq. Jur. § 1014. It is settled in this state that exemplary damages cannot be recovered as matter of right, even in an action at law, but are left to the discretion óf the jury. Robinson v. Superior R. T. Co. 94 Wis. 345, 68 N. W. 961; Haberman v. Gasser, 104 Wis. 98, 80 N. W. 105. And it has been held that where’ one comes into- a court of equity he waives his claim for puni-tory damages. Bird v. W. & M. R. Co. 8 Rich. Eq. 46. The damages awarded by courts of equity when they assess damages are only such as are ancillary to- the main relief and which become necessary to award in order to compensate the-party entitled to damages. Andrews v. Brown, 3 Cush. 130; 1 Pom,. Eq. Pur. (3d ed.) §§ 112, 178. Counsel for respondents insist that the rule to the effect that a court of equity should not award exemplary damages is not the rule-in Wisconsin, under sec. 3180, Stats. (1898), and our decisions which hold that where a court of equity takes jurisdiction it can award damages as well as a court of law. The damages which may be recovered in an equitable action under our decisions are compensatory and not exemplary damages. We think no decision of this court can be found where in an equitable action exemplary damages were allowed. Sec. 3180, Stats. (1898), does not authorize the recovery of exemplary damages in an equitable action. It clearly provides that an action at law may be brought to- abate a nuisance, and where the nuisance may work irreparable injury, interminable litigation, multiplicity of actions, or where the injury is continuous and constantly recurring, or there is not an adequate remedy at law, or the injury is not. susceptible of adequate compensation in damages at law, an — 59 — action in equity may be brought before the nuisance is established at law. Under this statute the plaintiffs had their election to sue at law or in equity. They elected to sue in equity, and having done so they brought themselves within the rules of equitable actions and waived the right to recover exemplary damages. We are therefore of the opinion that the court was in error in giving plaintiffs exemplary damages. 5. It is further insisted that the plaintiffs were only entitled to damages up to the time of the commencement of the action. This would doubtless be true if the action were at law. Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629. But the present action being in equity, we think plaintiffs were entitled to judgment for all damages, not only those accruing prior to the commencement of the action, but up to the time of trial. 22 Cyc. 961, 968; Beir v. Cooke, 37 Hun, 38, 41; Carmichael v. Texarkana, 94 Fed. 561; Vandevoort v. Gould, 36 N. Y. 639. The corporation not being liable for damages under the proof before its purchase, and the damages not having been apportioned, but assessed from the time of the construction of the dam to the time of trial, the defendant N. R. Állerís Sons Company cannot be held for damages; but the defendant company having maintained the nuisance since it purchased, judgment for abatement was properly awarded against all defendants. It follows that the judgment must be modified in accordance with this opinion. By the Court. — The judgment of the court below is modified by changing paragraph 1 to read as follows: 1. That the plaintiffs Sarah F. Karns and Mary M. Kao’ns do have and recover from the defendants Nathan and Charles IF. Allen the sum of $1,500 damages. And by striking out paragraph 2, which awards plaintiffs $500 exemplary damages, and as so modified is affirmed. The appellants are allowed costs in this court.