Pennoyer v. Allen
| Decision Date | 02 March 1881 |
| Citation | 51 Wis. 360,8 N.W. 268 |
| Parties | PENNOYER AND ANOTHER v. ALLEN AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Kenosha county.
J. V. Quarles and John T. Fish, for respondents.
James Cavanaugh and Jenkins, Elliott & Winkler, for appellants.
This action was brought to recover damages for a continuation of the same nuisance by the defendants, complained of in Pennoyer v. Allen, 6 N. W. REP. 887, 3 Wis. 157, and for an abatement of the alleged nuisance. That action was brought by the present plaintiffs against the defendants Nathan R. and Charles Allen only. In this action Nathan R. Allen, Jr., who had become a partner in the tannery business before either action was commenced, is also joined as a defendant. The pleadings in the two cases are substantially alike, and both cases came to this court on appeals from orders sustaining demurrers to the counter claim contained in the respective answers.In the other action we could not pass upon the merits of the counter claim because the relief prayed therein could not be granted in the absence of Nathan R. Allen, Jr., as a party to the action. In the present case he is a party, and the counter claim is before us for adjudication.
The question which we encounter at the outset is, does the counter claim state facts which will authorize a court of equity to grant the relief prayed? We think the question must be answered in the negative. Every fact stated in the counter claim--every right asserted therein--is available to the defendants, if at all, as a defence to the action, and has been so pleaded. Without invoking the equity powers of the court, they may, under their answer, show a prescriptive right to operate their tannery as it had theretofore been operated, or a right to do so conferred by grant. Or, if they show the expenditure of money on the faith of a parol license from the plaintiffs or their grantors, or their acquiescence in such expenditures, as alleged in the answer, the defendants can obtain all the benefit and advantage therefrom which they could have in any other forum. A judgment in this action for the defendants, based upon their right to maintain and operate their tannery in the future as in the past, would be just as effectual for their protection against the plaintiffs as would be the decree of a court of equity formally adjudging such right. If such right is established in this action, the judgment would be a bar to a future action by ...
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