Kamke v. Clark

• Court: Wisconsin Supreme Court
• Writing for the Court: CURRIE; STEINLE
• Citation: Kamke v. Clark, 268 Wis. 465, 67 N.W.2d 841 (Wis. 1955)
• Decision Date: 11 January 1955
• Parties: Bert KAMKE et al., Respondents, v. Frank CLARK et al., Defendants, Pabst Brewing Co., a corporation, Appellant.

Page 841

67 N.W.2d 841

268 Wis. 465

Bert KAMKE et al., Respondents, v. Frank CLARK et al., Defendants Pabst Brewing Co., a corporation, Appellant.

Supreme Court of Wisconsin.

Jan. 11, 1955.

Rehearing Denied March 8, 1955.

See 68 N.W.2d 727.

Quarles, Spence & Quarles, Milwaukee, Kenneth P. Grubb and Wayne J. Roper, Milwaukee, of counsel, for appellant.

George A. Bowman, William H. Bowman, Milwaukee, for respondents.

CURRIE, Justice.

It is the position of the appellant Pabst Brewing Company on this appeal that its motion for summary judgment should have been granted because under the undisputed facts the plaintiffs at the time of commencement of the action at most had only a cause of action at law for damages against appellant, and, therefore, there would be a misjoinder of causes of action unless the action be dismissed as to appellant. The following three reasons are advanced in support of the contention that no cause of action in equity to abate the nuisance existed at the time of institution of suit in behalf of plaintiffs against appellant:

(1) Appellant never had any right to control the manner of operating the dump, but only possessed a license to deposit waste materials there, and therefore had no legal right to enter upon the premises and abate the nuisance.

(2) Appellant had permanently ceased all use of the dump prior to the commencement of the action.

(3) There was already pending an action in behalf of Milwaukee county to abate the nuisance in which a judgment was subsequently entered directing the abatement of the same.

Sec. 263.04, Stats., provides:

'The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable or both. But the causes of action so united must affect all the parties to the action and not require different places of trial, and must be stated separately.' (Italics supplied.)

The plaintiffs' complaint was so drafted that appellant could not raise the issue of misjoinder of causes of action by demurrer, and, therefore, did so by allegations in its answer in the nature of a plea in abatement which set forth that it at no time had any right to control the operation of the dump after it had deposited its waste material there; that it had ceased all dumping operations as of September 16, 1953, prior to the commencement of plaintiffs' action; and that there was already pending an action in behalf of Milwaukee county seeking the abatement of this same nuisance. Because the issue of misjoinder could not be raised by demurrer, appellant maintains that the motion for summary judgment on its part was the proper procedure for disposing of the questions raised by the plea in abatement inasmuch as the truth of the allegations thereof are not in dispute.

There would seem to be no question but that the plaintiffs have a cause of action for damages against the appellant, assuming the allegations of the complaint, and of the affidavit in opposition to the motion for summary judgment, be true. These allegations charge the appellant with having continued to dump its waste materials on the Clark premises after notice that the owners were not taking proper steps to prevent the dump from being a nuisance with resulting harmful effects to the persons and property of nearby residents. Furthermore, it is alleged that the nuisance continued to exist after appellant had ceased to use the dump, and appellant's acts had contributed to cause such continuing nuisance. The following statement appearing in 2 Wood on Nuisances (3rd Ed.), p. 1264, sec. 837, is particularly pertinent:

'The fact that the defendant cannot enter to abate the nuisance does not excuse his liability, for it is his own wrong which has involved him in trouble.'

Appellant cites the case of Tiede v. Schneidt, 1900, 105 Wis. 470, 81 N.W. 826, as authority sustaining its position that no cause of action can exist against a mere user of a dump who has no authority to control the manner in which the owners operate the same. That case involved an action commenced against the proprietor of a rendering plant together with the city of Milwaukee to abate a nuisance and for damages. The defendant city had entered into a contract with the defendant owner whereby the city was to bring dead animals found upon its streets to the plant to be rendered. The trial court at the conclusion of the trial made findings of fact wherein it was found that the plant had been so operated as not to be a nuisance and dismissed the action as to both defendants. In the opinion of this court on appeal it was pointed out that the defendant city had never maintained or operated the rendering plant, that it had no connection therewith except to deliver dead animals there, and that there was nothing unlawful in so delivering such dead animals. In order for the facts in Tiede v. Schneidt to be parallel to those in the instant case it would have been necessary that the rendering plant have been so operated as to constitute a nuisance and for the city to have continued to have delivered dead animals to it after it had received notice that the plant was being continuously operated in such improper manner as to constitute a nuisance. Because of this marked difference in the fact situation of the two cases we do not consider Tiede v. Schneidt to be in point on the issue upon which appellant cites the same.

This court in Karns v. Allen, 1908, 135 Wis. 48, 58, 115 N.W. 357, held that under the provisions of sec. 3180, Stats. (now sec. 280.01), either an action at law or one in equity may be instituted to abate a nuisance, the latter being the proper action where the remedy at law is inadequate; and that where a court of equity takes jurisdiction it can award damages as well as a court of law.

In Mitchell Realty Co. v. City of West Allis, 1924, 184 Wis. 352, 199 N.W. 390, 35 A.L.R. 396, a situation was presented where the plaintiff sustained damages to its property as a result of a nuisance resulting from the pollution of a stream. The original action to abate the nuisance and for damages was brought against the city of West Allis and seven private corporations. These latter defendants appeared individually and moved to strike out of the complaint the allegations charging them with acts causing the pollution of the stream on the ground that to permit damages to be collected against these various defendants in the action to abate the nuisance would result in a misjoinder of causes of action. The trial court granted the motion and the plaintiff elected to proceed against the defendant city alone. Judgment was entered against the defendant city in the trial court for the abatement of the nuisance and for the recovery of all damages sustained by plaintiff and its predecessor in title as a result of the nuisance, even though the evidence established that the acts of the defendant city in operating its sewage disposal plant had caused only part of the pollution. Such damages were awarded on the theory that the defendant city and the private corporations, whose acts had also contributed to pollute the stream which resulted in the nuisance, were joint tortfeasors. On appeal, this court held that the city and the private corporations originally joined as defendants were not joint tort-feasors and declared, 184 Wis. at pages 369, 370, 199 N.W. at page 396:

'The instant case has been commenced under the provisions of sections 3180 and 3181 [now secs. 280.01 and 280.02] of the Statutes, and under the express provisions of these statutes an action may be begun in equity for an abatement of a nuisance, and there may be joined with such action a claim for damages. * * *

'It is our view, therefore, that the action as originally begun was maintainable, and that the order of the lower court in striking out the allegations as to damages with respect to the private corporations charged was erroneous. Had the action proceeded, the plaintiffs could have obtained their equitable remedy for the abatement of the nuisance, and, upon the determination by the court of the proportionate share of the damage caused by each of the defendants, were entitled to judgment for such amounts, thus disposing of the entire litigation in one action. To accomplish such a result is one of the principal functions of a court of equity.' (Emphasis supplied.)

The decision in McMechen v. Hitchman-Glendale Consol. Coal Co., 1921, 88 W.Va. 633, 107 S.E. 480, is in accord with the italicized portions of the foregoing quotation from Mitchell Realty Co. v. City of West Allis, supra, and numerous authorities are therein cited in support of such principle.

Appellant urges that the principle enunciated in Mitchell Realty Co. v. City of West Allis, supra, is only applicable where a cause of action in equity for the abatement of the nuisance exists against all defendants at the time of the commencement of the action, and that damages cannot be awarded by a court of equity against a defendant as to whom no cause of action for equitable relief is maintainable. We agree that this is a correct statement of the law. If at the time of commencement of the instant action the plaintiffs' only remedy against appellant, whose acts have contributed to cause the nuisance, were an action at law for damages, there would be a misjoinder of causes of action if the action were not dismissed as to appellant. This is because appellant is not a joint tortfeasor with the two other defendants who did dumping (town of Wauwatosa and A. O. Smith Company), and, therefore, the cause of action for damages against appellant does not 'affect all the parties to the action' as required by sec. 263.04, Stats. On the other hand, if a cause of action in equity for abatement exists against all of the defendants, such cause of action does 'affect all the parties to the action', and the awarding of damages in different amounts against various defendants, in proportion to the harm...