Fraedrich v. Flieth

Lyon, J.

1. The first question is whether the action is at law or in equity. We had the same question in Denner v. C., M. & St. P. R. Co. 57 Wis. 218 . The complaint in that case contained a demand for relief which it was not competent for a court of law to grant, and for that reason 'alone it was held that the action was in equity. Because the complaint did not state a cause of action in equity, a general demurrer thereto was sustained. This action was commenced after ch. 190, Laws of 1882, was enacted, and is subject to that statute.

This is a stronger case for holding the action an equitable one than was the case above cited, for it not only contains a demand for exclusive equitable relief, but it also contains an averment that if the alleged nuisance is continued it will work an irreparable injury to the plaintiff, which the statute makes a ground for equitable relief. In an action at law, if an abatement of the nuisance be adjudged, unless the defendant gives security that he will remove it, a warrant issues to the proper officer, requiring him to abate the same. E. S. secs. 8182, 3183. In this case the demand is that the defendant be required to abate the nuisance by removing the obstructions from the watercourse and filling the ditch. FTo such relief can be granted in an action at law. '

The question is quite fully considered in the opinion by Mr. Justice Cassoday in Denner v. C., M. & St. P. R. Co., and nothing more need be said upon it. We think this case is ruled by the judgment in that case. It is immaterial that the question there arose upon a demurrer to the complaint, while here it arose upon an objection to a jury trial. In his case a demurrer would have been fruitless, because the *188 complaint states a good cause of action in equity. The point seems to have been made at the first opportunity. In either case the character of the action must be determined by the complaint. We conclude that the action is in equity, and the rulings of the court to the effect that it is an action at law were erroneous. The circuit court so held on the motion to set aside the verdict and for a new trial.

2. It is maintained by counsel for the plaintiff that, although the action is in equity, a new trial should not have been granted for that' reason alone, but that the court should have treated the verdict as though the questions answered therein had been specially submitted to the jury under the power of the court in its discretion to take the verdict of a jury on questions of fact involved in equity causes; and hence that the court should have determined the case by approving the verdict if satisfied with it, and if not so satisfied, by finding the facts from the evidence independently of the verdict, and should have given judgment accordingly. We perceive no valid objection to the practice here suggested in á case in which the court has before it all the evidence, and the trial has been conducted as it would have been had the cause been regarded throughout as in equity. In such a case, although the cause has been regarded as one at law, no good reason is apparent why parties should be subjected to the delay and expense of another trial.

In the present case a material question of fact raised by the pleadings^ is, Did the defendant obstruct the watercourse on his land as alleged in the complaint ? He avers that the. obstruction complained of was the result of natural causes with which he had nothing to do. The jury viewed the premises. The testimony given on the trial is not preserved in the record. We cannot know to Avlia-t extent the finding for the plaintiff on the above question is based upon what the jury saw. The obstruction to the watercourse may *189 or may not have been of such a character that from an inspection the jury could determine its origin. The circuit judge had no view of the alleged obstruction. Hence the evidence which the inspection furnished the jury was not before the judge, and could not be unless he also should make a view. Under these circumstances we cannot say that the circuit judge was in a position to review and affirm or set aside the verdict of the jury on the question whether the obstruction was natural or artificial. When a question of fact in an equity case is submitted to a jury, the verdict is merely advisory) and it is competent for the court to find the fact- against the finding of the jury. To do this, however, or to review the verdict intelligently, it is necessary that the court have all the evidence which the jury had. In this case, as we have seen, the evidence furnished by the view (which may be important) was not before the court. Hence, when the court held that the action was of equitable cognizance, it found itself in no position intelligently to review the verdict as one merely advisory, and no course seemed open but to award a new trial. We do not think it was error to do so.

We conclude this branch of the case with the remark that a view by a jury called in an equity case to determine a question of fact should not be allowed unless the trial judge participates therein. The reason is obvious from what' has already been said.

3. We do not think the defendant waived any right by going to trial before the jury, after the ctfcrt, against his objection, had held that to be the proper forum. It is somewhat in the nature of an objection to jurisdiction of the subject matter, which cannot be waived.

4. When the motion for a new trial was made, counsel for plaintiff asked leave to amend his complaint by striking from the demand for judgment every demand contained in it except for damages and costs. Leave was refused.

*190 The only effect of the amendment, had it been allowed, would have been to change the action from one in equity to one at law. Such an amendment is inadmissible, unless made by consent, and the court properly refused to allow it. Carmichael v. Argard, 52 Wis. 607, and cases cited in the opinion; Kavanagh v. O’Neill, 53 Wis. 101 .

By the Court.— The order of the circuit court is affirmed.