Carthew v. City of Platteville

ViNJE, J. The complaint states a good cause of action under sec. 3180, Stats. 1911, and is clearly not subject to demurrer on tbe ground that several causes of action have [324] been improperly united in tbat it asks for damages as well as for the abatement of tbe nuisance. The statute expressly gives circuit courts jurisdiction of actions “to recover damages for and to abate private nuisances or a public nuisance from which any person suffers a private or special injury peculiar to himself.” The statute does not contemplate that separate suits should be brought for damages and for the abatement of the nuisance, nor has such been the practice. Karns v. Allen, 135 Wis. 48, 115 N. W. 357. It is quite obvious that there is here only one cause of action stated in the complaint, only one subject matter of litigation, namely,' the damage resulting to plaintiff from the alleged wrongful flow of sewage from the septic tank. Relief as to future’ damages is sought through an abatement of the nuisance, as to past damages by way of money compensation. Diversity of relief does not imply diversity of causes of action. Zinc C. Co. v. First Nat. Bank, 103 Wis. 125, 79 N. W. 229; Herman v. Felthousen, 114 Wis. 423, 90 N. W. 432; Simon v. Weaver, 143 Wis. 330, 127 N. W. 950. The cause of action stated is an equitable one. Sec. 3180, Stats. 1911; St. Croix C. C. Co. v. Musser-Sauntry L., L. & M. Co. 145 Wis. 267, 130 N. W. 102. The complaint alleges the injury is continuous. Previous to the enactment of ch. 190, Laws of 1882, sec. 3180 [R. S. 1878] ended with the words “and to grant injunctions to prevent the same,” in the fourth line, and it was held in a number of cases beginning with Remington v. Foster, 42 Wis. 608, and ending with Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629, that an action under it was an action at law, and that the statute abrogated the equitable remedy of a private party to have a nuisance abated. To restore the equitable remedy, ch. 190 of the Laws of 1882, which is the rest of the section as it now stands, was passed. This chapter expressly restored the equitable remedy of abating a nuisance in all cases coming within the calls thereof. Denner v. C., M. & St. P. R. Co. 57 Wis. 218, 221, [325] 15 N. W. 158; Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629. And equitable actions have since been maintained under it. Fraedrich v. Flieth, 64 Wis. 184, 25 N. W. 28; Rogers v. John Week L. Co. 117 Wis. 5, 10, 93 N. W. 821; Karns v. Allen, 135 Wis. 48, 115 N. W. 357; St. Croix C. C. Co. v. Musser-Sauntry L., L. & M. Co. 145 Wis. 267, 130 N. W. 102. As an incident to a part of tbe proper relief money damages are asked, but that fact does not change the' nature of that cause of action. It still remains a suit in equity. So far as material upon this appeal, the only provision in the statutes referred to in the statement of facts is the following from sec. 925 — 58: “No action shall be maintained by any person against any city organized under the provisions of this chapter upon any claim or demand of any kind or character whatsoever, until he shall have first presented his claim or demand to the council for allowance and the same shall have been disallowed in whole or in part.” It has been held that such statutory provisions do not apply to an action for equitable relief. Pinkum v. Eau Claire, 81 Wis. 301, 51 N. W. 550; Davis v. Appleton, 109 Wis. 580, 85 N. W. 515. This is such an action. The fact that in order to grant the full relief to which plaintiff may be entitled money damages are awarded does not bring it within the statute. Such relief flows out of the main cause of action as an appropriate incident thereto. A suit in equity may require many forms of relief, including an award of money damages. The nature of the suit is not destroyed or affected by the forms of relief granted. By the Court. — Order affirmed.