Beck v. Ashland Cigar & Tobacco Co.

Tie following opinion was filed March 14, 1911: Vinje, J. From tie foregoing statement of facts it appears tlat tie defendant is in tie actual possession of tie disputed strip at, above, and below tie surface of tie lot and excludes tie plaintiffs from tie possession thereof. Tie case therefore differs from tie cases of McCourt v. Eckstein, 22 Wis. 153; Zander v. Valentine Blatz B. Co. 95 Wis. 162, 70 N. W. 164; Rasch v. Noth, 99 Wis. 285, 74 N. W. 820; Rahn v. Milwaukee E. R. & L. Co. 103 Wis. 467, 79 N. W. 747; and Huber v. Stark, 124 Wis. 359, 102 N. W. 12, relied upon by tie plaintiffs. In McCotmi v. Eckstein, even though tie disseisin was occasioned by tie projection of about eight inches over upon plaintiff’s land of some of tie stones of defendant’s foundation wall below tie surface, it was held sufficient to entitle plaintiff, at lis election, to maintain ejectment, Dixow, O. J., however, doubting tie correctness of such holding. In Zander v. Valentine Blatz B. Co. the d&- [327] fendant put in a foundation wall that -projected about fourteen inches beyond his line. The plaintiff occupied up to the true boundary and rested his building in part upon the projecting wall, and it was held that he thereby elected to treat the intrusion as a mere trespass and could not maintain ejectment. The case of Rahn v. Milwaukee E. R. & L. Co. was practically similar to the Zander Case. The projecting wall was underground and the plaintiff was in full possession of the surface of her lots to the true line. Her possession being undisturbed, she could not maintain ejectment, and as the trespass was a continuing one it was held equity would assume jurisdiction and settle, once and for all, the rights of the parties. Basch v. Noth and Huber v. Stark were cases of projecting eaves, and inasmuch as plaintiffs occupied the surface up to the true line it was held ejectment would not lie. The doctrine is therefore firmly intrenched in this state that when there is an intrusion into the premises of another either below or above ground, but he is undisturbed in his possession of the surface of his land up to the true line, his remedy is trespass and not ejectment, and, if the trespass is a continuing one, equity has jurisdiction thereof. The present case, however, does not fall within this rule, for here the plaintiffs are dispossessed of tfie entire surface of the disputed strip, and the possession thereof is alleged to be in defendant. So we have a case where plaintiffs assert the absolute legal title to land held adversely to them by the defendant, and claim, as to one of them at least, the immediate right of possession thereof. Were such immediate right of possession claimed as to all the plaintiffs, it is clear their'only remedy would be ejectment and not a suit in equity. In Lee v. Simpson, 29 Wis. 333, the court said: “The plaintiff having the legal title, .and neither averring nor admitting any equitable title or interest in these defendants, and not being himself in possession of the lands, but the [328] same being adversely lield and possessed by tbe defendants, cannot maintain bis suit in equity against them. He bas an adequate and unquestionable remedy at law, by bis action of ejectment; and to tbat be must resort.” This doctrine bas been reaffirmed in Trustees, etc. v. Kilbourn, 74 Wis. 452, 43 N. W. 168, and Thomas v. McKay, 143 Wis. 524, 128 N. W. 59. Tbat a general demurrer to a complaint in equity raises tbe objection tbat plaintiff bas an adequate remedy at law is well settled. Denner v. C., M. & St. P. R. Co. 57 Wis. 218, 15 N. W. 158; Trustees, etc. v. Kilbourn, 74 Wis. 452, 43 N. W. 168; Gullickson v. Madsen, 87 Wis. 19, 23, 57 N. W. 965; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Ellis v. Southwestern L. Co. 102 Wis. 409, 78 N. W. 583. Tbe precise question, therefore, presented by tbe pleadings is: Can tbe remaindermen join in ejectment with tbe owner of a life estate wbo is entitled to tbe immediate possession of land held adversely by tbe defendant ? Undoubtedly tbe life tenant, Margaretha Beclc, could maintain ejectment alone and as executrix. Sec. 3083, Stats. (1898), gives her such right. Does a joinder of tbe remaindermen defeat tbe action? Tbe complete legal and equitable title-is in tbe plaintiffs. They derive it from a common source, and do not come under tbe ban tbat persons wbo claim title hostile to each other cannot join. Hubbell v. Lerch, 58 N. Y. 237. Tbe complete right to present possession is in plaintiffs. Perhaps under tbe common-law rule, tbat if one plaintiff in a joint action of ejectment cannot recover bis coplaintiffs cannot, no recovery of possession could be bad in this action, as only tbe life tenant is entitled thereto. Marsteller v. M’Clean, 7 Cranch, 156; Davis v. Coblens, 174 U. S. 719, 19 Sup. Ct. 832. But our statute bas changed that rule. Sec. 3074 provides: “No person can recover in such action [ejectment] unless be bas, at tbe time of commencing tbe action, a valid subsisting interest in tbe premises claimed and a right to recover tbe same or to recover tbe possession thereof or of some share, in [329] terest or portion thereof, to be proved and established in sncb action.” This indicates clearly that all the plaintiffs do not need to ■have identical interests nor that all need to have the right to recover the possession of the premises in dispute. It is sufficient if they have an interest therein that they are entitled to recover. The statute is in the disjunctive where it refers to the right to recover the interest in the premises and the right to recover the possession thereof; and sec. 3084 provides specifically that one or more of the plaintiffs in a joint action of ■ejectment may recover and others not. But sec. 2602 provides that “All persons having an interest in the subject matter of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided by law.” The remaindermen certainly have an interest in the subject matter of the ejectment action and in obtaining the relief demanded, and the rule that all persons having such interest may join applies to legal' as well as equitable actions. Schiffer v. Eau Claire, 51 Wis. 385, 8 N. W. 253. It was there held that a remainderman may join with persons owning intermediate estates in an action- to recover all damages, past or future, caused by the construction and maintenance of a mill-dam, on the ground that all were interested in the subject matter of the action and in obtaining the relief demanded, and it was clearly pointed out that the objection •of misjoinder of parties plaintiff was not taken in the interest of the defendant. Said the court: “So far as the defendant is interested, it would seem for his protection that all persons whose estate or interest in the same property has been injured by the act of the defendant should join in the action. The judgment would bar all the plaintiffs and save him the expenses of several suits instead of one.” That is just the situation here, and that is just the object the statute sought to attain when it said that all persons having :an interest in the subject matter of the action and in obtain [330] ing tRe relief demanded may Re joined as plaintiffs, namely,, to determine in one suit tRe rigRts of all parties in the subject matter of tRe litigation. A statute framed to secure sucR desirable results by sucR simple, direct means, and passed for-tRe express purpose of obtaining relief from tRe technicalities-of tRe common-law rules of pleading, sliould receive a liberal construction. However, in tRis case it is not necessary to go-beyond its strict letter. We conclude, therefore, that tRe complaint stated a good cause of action in ejectment as to all the-plaintiffs and that tRe demurrer thereto should Rave been sustained. By the Court. — Order reversed, and cause remanded for further proceedings according to law. Siebbckbe, J., took no part. A motion for a rehearing was denied June 1, 1911.