Ill. Steel Co. v. Schroeder

• Decision Date: 24 September 1907
• Citation: 113 N.W. 51,133 Wis. 561
• Parties: ILLINOIS STEEL CO. v. SCHROEDER ET. AL.
• Court: Wisconsin Supreme Court

133 Wis. 561

113 N.W. 51

ILLINOIS STEEL CO.

v.SCHROEDER ET. AL.^a1

Supreme Court of Wisconsin.

Sept. 24, 1907.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by the Illinois Steel Company against Herman Schroeder and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Marshall and Siebecker, JJ., dissenting.

This action was brought in equity. All the defendants, except Valentine Zelin and wife, demurred on the following grounds: (1) That there is another action pending between the same parties for the same cause; (2) that several causes of action have been improperly united; (3) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appealed.

The complaint is very voluminous, the material allegations of which, so far as necessary to consider upon this appeal, are in effect that the plaintiff is the owner of certain land situate on what is known as “Jones Island”; that each defendant is in possession of a separate tract of said land; that plaintiff has the record title, and is the owner in fee simple absolute; that such lands are bounded on the east by Lake Michigan, on the north by the outlet of Milwaukee river, on the west by the combined waters of the Milwaukee, Menominee, and Kinnickinnic rivers, and on the south by other lands owned and possessed by plaintiff; that there is no means of access to said land, except by boat or over other lands of plaintiff, over which no right of passage exists; that said lands are worth $40,000, and comprise the greater part of Jones Island; that each defendant claims to own the land occupied by him under title acquired by adverse possession; that all defendants' titles were acquired starting with one Muza under an alleged entry by Muza in 1872, which adverse possession he held until after August 1, 1886; that plaintiff and its predecessors have always been in possession of Jones Island, except as to parts separately intruded into and held by defendants and by others who have attorned to the plaintiff, and others whose alleged claim or source of claim and time and length of possession is other and different than the alleged claim or source of claim and time and length of possession of the defendants; that plaintiff and its predecessors have at all times paid taxes on said premises; that the title of plaintiff and its predecessors has been a matter of public record; that after August 1, 1886, the defendants, and before that time other persons separately and at different times, “squatted” upon or intruded into the possession of separate, specific, distinct, and in most instances disconnected and noncontiguous small portions of the land in question without the consent of the owners and without right; that plaintiff and its predecessors numbered the certain tracts held by defendants and demanded that they take leases therefor; that some of the defendants recognized plaintiff's title; that plaintiff did not know until March 27, 1900, that any attempt was to be made by defendants to claim title by adverse possession, and that no such idea was conceived of until about 1899; that defendants and others occupying the tracts of land in question refused to recognize plaintiff's title until they were satisfied by proceeding in court that the plaintiff was the owner and holder of the paper title to said lands; that in February, 1896, plaintiff instituted separate suits against persons occupying said land for the purpose of satisfying defendants that its title was good; that in some of said cases judgments have been rendered in favor of the plaintiff; that in March, 1896, plaintiff commenced an ejectment action against one John Budzisz and August Budzisz to recover a specific piece of said land, and in said action the defendants based their claim upon the entry of Jacob Muza October, 1872, and adverse possession by him; that the questions of fact and law are the same in said case as the claims of the defendants in the instant case; that said case was appealed to the Supreme Court, and is reported in 115 Wis. 68, 90 N. W. 1019; that in June, 1897, plaintiff commenced ejectment actions against several of the defendants to recover specific portions of said land; that in some of these actions judgment was rendered in favor of the plaintiff; that in July, 1897, other like actions were commenced; that in September, 1897, and thereafter, other like actions were commenced, and in several of said actions final judgment in favor of the plaintiff has been rendered; that in none of the cases tried has the title to the land in controversy been finally adjudicated to be in the defendant or defendants in such actions; that the trial of said actions consumed a great amount of time; that 84 suits against the defendants are pending and undetermined; that a combination and conspiracy has been entered into between the defendants to raise money to unlawfully maintain and conduct the defenses of each of the defendants, and to assist in said defenses in unlawful and corrupt ways and by fraudulent and perjured defenses, and by unlawful means to accomplish the defeat of the plaintiff, and to contribute a fund for such purpose, and such money is being used for such purpose, and that such defenses could not be maintained without it; that until April, 1899, the defense of the statute of limitation had not been set up, and that the defendants entered into a fraudulent scheme to and did set up such statute as a defense, and that the allegations respecting adverse possession are false; that none of defendants have title by adverse possession or otherwise; that the defendants intend to each claim through one Jacob Muza, and to maintain that he took possession of Jones Island October, 1872, under claim of title exclusive of any other right, and continued to hold adversely; that Jacob Muza did not in fact take possession until some time in 1878 or 1879, and, if he did then, or at any time, his possession embraced none of the land in controversy between the plaintiff and any of the defendants; that neither Muza or he and his privies combined had adverse possession for 20 years prior to the commencement of the ejectment suits in question, nor for 20 years prior to August 1, 1896; that each separate tract claimed by each defendant was separately intruded into and separately occupied; that each of the intrusions was commenced at distinct and different times from the intrusions and occupations of other respective defendants or their predecessors, and all of them were since August 1, 1886; that the defendants and each of them claim title through Jacob Muza by verbal transfers since August 1, 1886, or through some persons who succeeded to the possession or title by verbal transfer from Muza, or by mesne verbal transfers of title and possession thereof, the first of which was by Muza some time since August 1, 1886, and claim that they respectively tack their possession and occupation of said particular tract on the alleged possession of Muza and his successors and privies; that none of the defendants hold under color of title; that each of the defendants claim only by virtue of tacking their respective possession upon the alleged adverse possession of Jacob Muza or his successors; that each of the defendants' claim is founded wholly upon the contention that Jacob Muza held and maintained open, notorious and continued possession; that Jacob Muza went upon Jones Island in 1872, but did not continue upon it or occupy the whole of it and abandoned the island in 1873, but returned some time in 1877 or 1878; that in 1878 or 1879 he took possession of a small part of the island.

The complaint further alleges that the defendants are irresponsible and insolvent, and that great expense has been incurred in the prosecution of the various ejectment suits, and will be incurred in the future in consequence of the multiplicity of suits, and that plaintiff has sustained irreparable injury in consequence of carrying on the various ejectment suits pending at the time of the commencement of this action, being in number upwards of 80 cases, and that the defendants Valentine Zelin and Mertzy Zelin make claim to some or all of the specific tracts set out in the complaint. The complaint also sets up specifically the tract claimed as intruded into by each defendant and held by him, and prays that the plaintiff be adjudged the owner of each tract and entitled to immediate possession; that defendants be perpetually enjoined from contributing to any fund to assist in the alleged defenses; that the defendants account for rents, profits, and damages; that the plaintiff's claim of title be established against the claims of Valentine Zelin and Mertzy Zelin.

Van Dyke & Van Dyke, Walter D. Corrigan, and John H. Paul, for appellant.

Fiebing & Killilea (Frank M. Hoyt and William F. Adams, of counsel), for respondents.

KERWIN, J. (after stating the facts as above).

The main contention of appellant is that equity will take jurisdiction upon the facts stated in the complaint on the ground of interminable litigation, occasioned by multiplicity of suits, fraud, combination, and conspiracy between the several defendants in maintaining their defenses, and irreparable loss to the plaintiff. The jurisdiction of courts of equity in a proper case to prevent multiplicity of suits is well established, but the doctrine is not always easy of application. The multiplicity of suits sought to be prevented sometimes constitutes the inadequacy of legal remedies, and calls forth the equitable jurisdiction. When, however, we attempt to define the exact limits of this head of equity jurisdiction, we find much difficulty in prescribing the exact limits of the jurisdiction. This becomes apparent from an examination of the numerous authorities cited in the able and exhaustive brief presented by the appellant. It is manifest,...