Schiffer v. City of Eau Claire

• Decision Date: 02 March 1881
• Citation: 8 N.W. 253,51 Wis. 385
• Parties: SCHIFFER, ADMINISTRATOR, AND OTHERS v. CITY OF EAU CLAIRE.
• Court: Wisconsin Supreme Court

51 Wis. 385

8 N.W. 253

SCHIFFER, ADMINISTRATOR, AND OTHERS

v.CITY OF EAU CLAIRE.

Supreme Court of Wisconsin.

Filed March 2, 1881.

Appeal from circuit court, Eau Claire county.

Meggett & Teall, for respondent.

H. H. Hayden and L. M. Vilas, for appellant.

TAYLOR, J.

This action is brought to recover damages for flooding the plaintiff's house and lot, situate in the city of Eau Claire, by reason of the maintenance of a dam across the Chippewa river by the appellant. The complaint shows that the premises flooded are a lot containing one acre of land, with a dwelling-house and appurtenances situate thereon; that one Winnard Eller owned the same in fee; that he died intestate in 1873, and left a widow, Magdalena Eller, and seven children, his only heirs at law; and that Otto R. Schiffer is the only appointed administrator of the estate of said deceased. The widow, children, and the administrator all join in this action as plaintiffs. The complaint alleges that the house and a quarter of an acre were the homestead of the deceased at the time of his death, and as such homestead the widow is entitled to an estate therein during her widowhood, and that she is still the widow of the deceased; that all the premises have been occupied by the widow and her children without any setting apart of the homestead, or the widow's dower in the remainder of the premises, ever since the death of the deceased, and were so occupied at the time of the injuries complained of. After alleging the erection and maintenance of the dam by the defendant, the complaint alleges that, by reason of the erection and maintenance thereof, the water of the river percolates through the banks of the river and overflows and submerges a considerable portion of the premises, and has greatly damaged and does greatly damage the same, and destroyed the value thereof, and has rendered the same and ever will continue to render the same untenantable and worthless; and that by reason thereof the said widow and her children were obliged to and have wholly abandoned said premises, and cannot and have not for upwards of nine months lived upon or occupied the same, and the same has become and ever will continue to be worthless for the purposes of cultivation, and wholly unfit therefor, and that thereby the plaintiffs have sustained such injury and damage in the sum of $1,200.

To this complaint the appellant demurred, and allege as grounds of demurrer--(1) That several causes of action have been improperly united therein; and (2) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant appealed from the order overruling the same. The appellant insists that there are three separate causes of action stated in the complaint, viz.: (1) A cause of action in favor of the widow alone for the injury done to the homestead; (2) a cause of action in favor of the children of the deceased for the injury done to the estate in remainder, as to the homestead; and (3) a joint cause of action in favor of the widow and children for the injury done to the three-fourths of an acre which is not a part of the homestead. As to this last cause of action it is not denied that the widow and children may properly join as plaintiffs. It being conceded that the parties are properly joined as to the third cause of action, the only question to be determined upon this appeal is whether the persons owing the remainder may join in an action with the person owning the intervening estate to recover damages caused by the same unlawful act of the defendant, when it is shown that the persons owning the intermediate estate and the estate in remainder are both injured by such act. The learned counsel for the appellant do not contend that an action cannot be maintained by the person owning the estate in remainder during the continuance of the intermediate estate, when the injury complained of is detrimental to the estate in remainder. That such action may be maintained by the remainder-man, especially against a stranger to the title, is well settled by the authorities. Van Dusen v. Young, 29 N. Y. 9;Pamfret v. Ricroft, 1 Saunders, 321, note 322 b; Queen's College v. Hallett, 14 East, 489; Jackson v. Pesked, 1 Maule & Selwyn, 234; Chitty's Plead. 140.

But it is insisted by the learned counsel for the appellant that as the damages which the remainder-man can recover do not belong to the person owning the intermediate estate, and vice versa, that the causes of action are separate and distinct in favor of the separate plaintiffs, and cannot therefore be joined. It is not contended that if this were an action to abate the defendants' dam as a nuisance to the plaintiffs, they could not all properly join in such action under the provisions of section 2602, Rev. St. 1878. See Bliss on Code Pleadings, § 73, and cases cited; Williams v. Smith, 22 Wis. 594; 1 Wait's Practice, 112. The section reads as follows: “All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided by law.” But it is argued that because this is an action which was formally denominated an action at law, and because the relief demanded is compensation in money only for the injury sustained, and because the money recovered will belong to the plaintiffs in severalty in proportion to the injury each has sustained, the plaintiffs cannot join in the action. Certainly this objection is not taken in the interest of the defendant, and, if it must prevail, it must prevail on account of some technical rule which remains in force notwithstanding the Code. So far as the defendant is interested it would seem for his protection that all persons whose estate or interest in the same property has been injured by the act of the defendant should join in the action. The judgment would bar all the plaintiffs and save him the expenses of several suits instead of one. In such case the whole damage to the property could be much more readily ascertained than if the court and jury were compelled to divide it up and determine how much the injury was to the remainder-man, and how much to the person owning the intermediate estates. That there might be difficulty in...