Draper v. Brown

• Decision Date: 21 October 1902
• Parties: DRAPER ET AL. v. BROWN ET AL.
• Court: Wisconsin Supreme Court

115 Wis. 361

91 N.W. 1001

DRAPER ET AL.

v.BROWN ET AL.

Supreme Court of Wisconsin.

Oct. 21, 1902.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Charles B. Draper and others against Fred E. Brown and others. From an order overruling a demurrer to the complaint, certain defendants appeal. Affirmed.

The plaintiffs are the owners of property abutting on Fowler Lake, in the city of Oconomowoc, Wis.; each owning tracts in severalty. This lake is fed by the Oconomowoc river, which flows in from the east, and its waters are discharged into La Belle Lake, a few rods west. In 1837 a dam was erected at the outlet, raising the water about nine feet above the natural level, which dam has since been maintained, and the water usually kept at an average level of nine feet, until about 1893. The land adjoining was overflowed to some extent, and when so maintained the lake was available for boating and fishing purposes. Relying upon these conditions, the plaintiffs have built summer residences, hotels, etc., with boat landings and wharves, and made many improvements to conform to the increased level. The property has become valuable because of these changed conditions, and will be greatly damaged if the water be drawn down. The defendants Brown and Peacock own the dam and water power and water rights, and have flouring mills operated thereby. Said mills are so situated that the defendants are able at pleasure to draw the water almost entirely from Fowler Lake, and since 1893 they have wrongfully and unnecessarily allowed the water to run through their waste gates, and have unnecessarily drawn the water to an exceedingly low stage, thereby lowering it four feet at a time. By reason thereof the shores of the lake have become marshy, miry, and impassable for boats, and in a very unsanitary condition, generating malaria and breeding sickness. Boathouses, piers, and docks have become useless, and access to the lake from the adjoining property impracticable. The defendants' mill is equipped with old-fashioned water wheels, which require much more water to develop power than modern equipments, which are retained and used as an excuse for drawing the water down to the low stage as stated. The plaintiffs claim the prescriptive right to require the former head of water in the lake to be maintained, and allege irreparable damage resulting from the lowering thereof. The defendant Oconomowoc Waterways Company is a corporation claiming the right to widen and deepen the Oconomowoc river, which has been done, and locks put therein, obstructing and diminishing the flow of water into said lake to some extent, and in that way has participated more or less in lowering the water in the lake. It claims the right to obstruct the flow, and threatens to maintain the obstructions and control the flow, to the injury of the plaintiffs. The other defendants, who may be called the “Schraudenbach Heirs,” own and control a milldam and water power at the outlet of Okauchee Lake, from which the waters of the Oconomowoc river flow into Fowler Lake. This dam carries a head of 11 feet. If the water is obstructed either in Okauchee Lake or the Oconomowoc river, it interferes with and lowers the waters in Fowler Lake. Said defendants have at times obstructed the natural flow of the Oconomowoc river, and unnecessarily held the waters back in said lake to a higher point than they have any right to hold the same, and at times have completely stopped the flow of said river; thus interfering with the height of water in Fowler Lake. The plaintiffs are without any legal remedy, and ask judgment determining the rights of the parties, and a perpetual injunction against all the defendants, restraining them from interfering with the ordinary level of Fowler Lake. The defendants Brown and Peacock demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and because several causes of action had been improperly united therein. Such demurrer was overruled, and from an order so entered they have taken this appeal.Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

Edward Hurlbut, John A. Kelly, and T. E. Ryan, for respondents.

BARDEEN, J. (after stating the facts).

The only question argued in the briefs is whether two or more causes of action have been improperly united in the complaint. The theory of defendants is that one cause of action is stated against the owners of the water power at the outlet of Fowler Lake for unlawfully decreasing the customary level of the lake, another against the Oconomowoc Waterways Company for obstructing the accustomed flow of the river, and still another against the Schraudenbach heirs for unlawfully withholding water in Okauchee Lake. At first glance this theory seems somewhat convincing; but when the situation is carefully analyzed, and the primary and ultimate purpose of the litigation considered, the fallacy of the claim becomes apparent. The single purpose of the plaintiffs, as clearly outlined in the complaint, is to maintain the water in Fowler Lake at its accustomed level. The defendants Brown and Peacock interfere with plaintiffs' right to have it so maintained by suffering the water to run over their waste channel and through their mill wheels to an extent that materially decreases the lake level. At times, and inferably at the same time this is going on, the Schraudenbach heirs withhold the natural flow of the Oconomowoc river in Okauchee Lake, thus diminishing the water supply of Fowler Lake. The waterways company also obstructs the flow of the river, so as to further reduce the lake level. Although acting independently, their concurrent acts result in injury to plaintiffs' property. It is perfectly apparent from the complaint as a whole that the acts complained of as against the last-named defendants unite with and concur with the acts of Brown and Peacock, and together produce the result claimed. It is true that the complaint says that the waterways company “has participated more or less in assisting to lower the waters of said Fowler Lake,” and that the Schraudenbach heirs “have at times” completely stopped the flow of water in the river. These allegations are not as definite as they might have been in showing the concurrence of the acts complained of. It is alleged, however, that Brown and Peacock are the owners of and are operating, and have for a long time past been operating, flouring mills at the outlet mentioned. The inference fairly arises that such operation is continuous, so that the concurrence of the acts of the other defendants with those of Brown and Peacock reasonably appears. We then have the one primary right of the plaintiffs to have the water of Fowler Lake remain at its accustomed level. We have the corresponding duty of the defendants not to interfere with such right. We have also a wrongful violation of the plaintiffs' right by the defendants Brown and Peacock in unnecessarily drawing off the water, and the concurrent acts of the other defendants in withholding the natural and accustomed flow of water into the lake. Thus we find a single, complete cause of action, in which all of the defendants are interested, although acting independently and without concert.

It must be distinctly borne in mind that this is not an action to recover damages against the defendants. It is rather an action to restrain the commission of acts which result in a nuisance and consequent injury to plaintiffs' property. In a legal action to recover damages, as in Lull v. Improvement Co., 19 Wis. 100, the several defendants could not be joined, because each defendant could only be held responsible for the injury done by him. In such case the injury done by one defendant may be slight, and by the other great. The law only requires each to respond to the extent that he is guilty. It may seem somewhat anomalous that, under a Code, any distinction should exist between legal and equitable actions. That such distinction does exist is recognized in almost every code state. It is a distinction inherent in the very nature of things, and must be recognized so...