Castle v. City of Madison

• Decision Date: 18 February 1902
• Citation: 89 N.W. 156,113 Wis. 346
• Parties: CASTLE ET AL. v. CITY OF MADISON ET AL.
• Court: Wisconsin Supreme Court

113 Wis. 346

89 N.W. 156

CASTLE ET AL.

v.CITY OF MADISON ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1902.

Appeal from circuit court, Dane county; Eugene S. Elliott, Judge.

Suit by John Castle and others against the city of Madison, in which Bertrand H. Doyan and others intervened. From an order sustaining a demurrer to a plea in abatement interposed by the interveners, they and defendant appeal. Reversed.

This is an equitable action, brought to abate a dam on the Catfish creek at the outlet of Lake Mendota, alleged to be owned and maintained by the defendant city of Madison. The complaint at considerable length sets out that plaintiffs are the owners of lands which are overflowed by said dam, the circumstances under which the dam was built, an abandonment of the purpose of which it was built, and the fact that the city is maintaining it at a greater height than it had any right to, which increases the overflow of plaintiffs' lands, and causes them damage. The prayer for relief is that the dam be abated, and that the city be enjoined from obstructing the natural flow of the stream from the lake. The city answered that Lake Mendota was a navigable body of water about 25 miles in circumference. The answer then puts in issue some of the allegations regarding ownership and overflow of the lands mentioned in the complaint; sets out at length the circumstances and authority by which the dam was built in 1849 or 1850, the raising of the water in the lake about four feet, and a continuous maintenance of said head at a uniform level ever since. It alleges title in the defendant by mesne conveyances from the original owners, denies raising a head of water higher than it has been kept for more than 40 years. As a special defense the city then set up that the dam so erected was for the purpose of raising the level and improving the water power of the lake, and which caused the water to set back and spread and overflow in many places, and made new margins and boundaries for the lake, and that the city's grantors had obtained a prescriptive right to such overflow, which right the city now possesses; that some 20 or more of its streets lead to said lake, and since said overflow the city has graded and adjusted said streets in accordance with said increased level. That the east shore of the lake is covered with many costly homes and summer cottages, and many valuable improvements have been made with reference to the new level, and much money expended to cause said property to conform thereto, and that very many of the owners of said property have obtained a prescriptive right to require said level to be maintained. The answer gives the names of a large number of property owners who have made such improvements, who have demanded of the city that it protect their interests in the maintenance of said dam, and alleges that they are proper parties to this action, and necessary to a complete determination of the interests involved. Later the city obtained an order to show cause why the property owners named should not be made parties defendant. On December 3, 1900, the court made an order denying such motion. Later a number of property owners made petition setting out their interest in the litigation, and asking to be made parties, and the court made an order allowing them to intervene in their own behalf, but not for other riparian owners. Such interveners made answer putting many of the allegations of the complaint in issue, and by way of abatement set up the interests of other landowners bordering on the lake, whose rights were involved in this litigation, to the number of 256. The list gave the names and addresses of all the owners of land shown by the records to be interested in the suit, and asked that they be made parties to the action. A further answer in bar of the action was made, but which is not material to the present inquiry. The plaintiffs demurred to the matter set up in abatement on the ground that it appears on the face of the answer that the parties sought to be brought in were not proper or necessary parties to the action. The demurrer was heard by the late Judge Elliott sitting for Judge Siebecker, and was sustained on the ground that the former order of December 3, 1900, was res adjudicata. An order sustaining the demurrer and dismissing the plea in abatement and requiring the defendant interveners to pay $10 costs was entered September 27, 1901. The city and the several interveners take an appeal from the order of December 3, 1900, and from the order of September 27, 1901. Upon motion of plaintiffs the appeal from the order of December 3, 1900, was dismissed by this court on January 7, 1902. A motion to dismiss the appeal of the city from the order of September 27, 1901, was held over until the argument of the case, and is here to be considered.John A. Aylward, City Atty., John M. Olin, A. L. Sanborn, and John B. Sanborn, for appellant.

A. W. Anderson and J. E. Messerschmidt, for respondents.

BARDEEN, J. (after stating the facts).

The appeal from the order of December 3, 1900, having been heretofore dismissed, we have here only to consider the appeal from the order sustaining the demurrer to and dismissing the answer in abatement. By that answer the interveners sought to bring in as parties all persons owning property on the shores of Lake Mendota affected by the overflow caused by the dam at the outlet of the lake. The court below sustained the demurrer on the sole ground that, because the court had theretofore denied the right of the city to require such additional parties to be brought in, it was res adjudicata, and binding upon the court in all subsequent proceedings in the case. The court was evidently in confusion in the matter. The former order had been made before the interveners had been made parties to the suit. They had had no day in court on the question involved. They were seeking to protect their own rights, and to prevent further harassing litigation. Conceding, for the purpose of the argument, that their answer was well founded, to say that their rights had been concluded and cut off by proceedings had in the action before they had an opportunity to be heard would be little less than absurd. Their rights in the litigation were not dependent upon or in privity to those of the city. On the contrary, they come in as adversaries of the city, intent upon compelling it to maintain the head of water as of old, that their property might not be destroyed. In that view they were in no way bound to yield to former rulings of the court that were inimical to their interests. The case bears not the slightest parallel to the cases cited by plaintiffs' counsel, of which Dick v. Williams, 87 Wis. 651, 58 N. W. 1029, is a type. In that case there were three successive motions to set aside a judgment on the same grounds. The first was denied without prejudice, the second was denied absolutely, and the third was also denied absolutely, and the order appealed from. It was said that when the last motion was made the matter was res adjudicata. This was upon the theory the party had already had his day in court upon the same subject-matter. All the cases cited to support that decision were rulings upon motions after judgment. When a case has once ripened into a judgment its binding force becomes complete, and the doctrine of res adjudicata applies with all its limitations. Without statutory authority the court has no power to relieve the parties therefrom. Not so with rulings made while the case is pending. While the case may, and often does, deny motions made pendente lite on the ground that the same question has been once before determined in the court, it is not because the court has not the power to alter his ruling, but rather because the court will not submit to be harassed by repetitions of motions based upon the same ground. In this case a ruling had been made involving substantially the same legal principles as were involved in the demurrer presented. The parties then before the court were different from those concerned in the former hearing. The ruling first made was not binding upon them. The court still had the power to change the former ruling. That ruling was only binding to the extent that the court chose to make it. It was not res adjudicata in the sense that it bound both court and the parties before it. It was binding in the sense that, as between the same parties and upon the same showing, the court was not bound to entertain it a second time. Probably all the court intended to say was that, as the judge before whom the action was pending had made a ruling involving substantially the same question, he felt bound to follow the decision so made to save future embarrassment. See Clopton v. Clopton (N. D.) 88 N. W. 562. The rule argued for that the interveners must take the case as they find it, has no application in a case like this, for the reasons already stated.

We come now to the question of whether,...