Thornton v. Webb

• Court: Minnesota Supreme Court
• Writing for the Court: Berry
• Citation: Thornton v. Webb, 13 Minn. 457 (Minn. 1868)
• Decision Date: 01 January 1868
• Parties: FRANCIS M. THORNTON v. EMILY WEBB.

13 Minn. 457

FRANCIS M. THORNTON

v. EMILY WEBB.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Hennepin county.

The action was for the abatement of a dam. Plaintiff had judgment below.

F. R. E. Cornell, for appellant.

Wilson & McNair, for respondent.

BERRY, J.

1. The relief sought in this action is the removal of dam by which the respondent claims that his lands are unlawfully overflowed and damaged. The appellant insists that as the dam complained of was erected more than two years prior to the commencement of this action, the plaintiff is denied the right to recover damages by section 17, p. 849, Pub. St., which is substantially the same as section 17, p. 241, Gen. St., which reads as follows: "No action for damages occasioned by the erection and maintenance of a mill-dam shall be sustained unless such action is brought within two years after the erection of said dam," etc.; and that as he cannot recover damages he cannot maintain this action to abate the dam.

The same point was made in Eastman v. St. Anthony Falls W. P. Co. 12 Minn. 137, (Gil. 77,) and we there held that "whether the right of action at law for damages is barred or not is immaterial, as this is an equitable action for the removal of a nuisance, and governed by section 12, c. 60, Pub. St." See, also, Cook v. Kendall, ante, 297.

2. The appellants claim that "this action should have been dismissed because of the pendency of a former suit." The court below finds "that another action was commenced by the plaintiff against the defendants with other persons for the same cause of action, (as alleged in the answer,) and issues of fact and law framed upon the pleadings therein; that the issue of law in said action was tried and determined in this court, while the issues of fact therein were still pending and undetermined, and from the decision and order in defendants' favor on said issue of law said plaintiff took an appeal to the supreme court, which appeal was perfected, and a return thereon duly made to said supreme court by the clerk of this court; that there is no evidence before me in this case of any determination of said appeal in the supreme court, nor of any action thereon, nor of any mandate or remittitur to this court in the said cause; that the said plaintiff did, on the twenty-first day of March, 1866, file and cause to be entered a discontinuance of the said former action in the office of the clerk of the district court of Hennepin...