Janesville Cotton Manuf'g Co. v. Ford

• Decision Date: 10 May 1882
• Citation: 55 Wis. 197,12 N.W. 377
• Parties: JANESVILLE COTTON MANUF'G CO. AND OTHERS v. FORD AND OTHERS, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

55 Wis. 197

12 N.W. 377

JANESVILLE COTTON MANUF'G CO. AND OTHERS

v.FORD AND OTHERS, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Appeal from circuit court, Rock county.

The territorial legislature of 1843 authorized A. Hyatt Smith and William H. H. Bailey to construct a dam across Rock river within the present limits of the city of Janesville. The dam so authorized was soon thereafter constructed. The water-power created thereby is now owned by the parties to this action in several and unequal proportions, under and by virtue of certain mesne conveyances from the proprietors granting the right to the grantee in such conveyance to draw a certain specified quantity of water from the dam, under certain restrictions and subject to certain charges for keeping the dam and race-ways in repair, expressed in each of said grants. This action was brought under the provisions of the Revised Statutes concerning “partition of water-powers,” (sections 3149 to 3153, inclusive,) as amended by chapter 203, Laws 1881. The complaint, which is very voluminous, contains what purports to be a full statement of all grants of the right to draw water from said dam, and of all interest in the water-power created thereby, executed by the proprietors, and of all the mesne conveyances by virtue of which the rights granted by the proprietors became vested in the parties to this action. It is alleged in the complaint in substance that disagreements have arisen and exist between the parties in respect to their several interests in the waterpower, the priority of right between them, the manner in which the water should be used, and the apportionment between them of the expense of keeping the dam and race-way in repair. These various disagreements, the nature and extent thereof, and the parties affected thereby, are specifically stated. The relief prayed is substantially that provided for in the above statutes. Several of the defendants demurred jointly to the complaint on the grounds-- First, that several causes of action are improperly united therein; and, second that it does not state facts sufficient to constitute a cause of action,--and have appealed from an order overruling such demurrer.Pease & Ruger, for respondents.

A. A. Jackson, for appellants.

LYON, J.

This action is in the nature of an action for partition, if not strictly such an action. The amended sections of the Revised Statutes under which it was instituted (sections 3149-53, amended by chapter 203 of 1881) are placed under the head of “partition of water-powers,” thus showing the legislative idea of the character of the proceeding. We have little doubt, in the absence of any statutory provisions on the subject, a court of equity could properly entertain such an action and grant all necessary relief. But we prefer to leave that point undecided, and to consider the action as a purely statutory one. If the statute is valid there can be no doubt, we think, that a cause of action under it is stated in the complaint, for it shows that the contingencies have arisen which are specified in the statute as grounds for bringing such an action, and that the parties thereto are the owners of the water-power.

The object of the statute is to give an action in which all the conflicting claims of such owners to the use and enjoyment of their respective rights in the water-power, and their respective liabilities for the expense incident to its care and management, may be fixed and determined. The complaint contains no allegations of facts which are not subsidiary to that object. Hence it does not improperly unite several causes of action.

Is the statute under which the action was brought a valid law? Considered as a purely statutory action this is the controlling question in the determination of the d...