[567]*567Tbe following opinion was filed September 24, 1907:
EeewiN, J.
Tbe main contention of appellant is tbat equity will take jurisdiction upon tbe facts stated in tbe complaint on tbe ground of interminable litigation, occasioned by multiplicity of suits, fraud, combination, and conspiracy between tbe several defendants in maintaining tbeir defenses, and irreparable loss to tbe plaintiff. Tbe jurisdiction of courts of equity in a proper case to prevent multiplicity of suits is well established, but tbe doctrine is not always easy of application. Tbe multiplicity of suits sought to be prevented sometimes constitutes tbe inadequacy of legal remedies and calls forth tbe equitable jurisdiction. "When, however, we attempt to define tbe exact limits of this bead of equity jurisdiction, we find much difficulty in prescribing tbe exact limits of the jurisdiction. This becomes apparent from an examination of tbe numerous authorities cited in tbe able and exhaustive brief presented by tbe appellant. It is manifest without discussion tbat tbe alleged conspiracy and combination on tbe part of tbe defendants to maintain tbeir several defenses, or the great expense and delay alone, would not be sufficient to give a court of equity jurisdiction. Tbe right of tbe plaintiff to proceed in equity, therefore, upon tbe facts pleaded must be sustained, if at all, on tbe grorxnd of preventing a multiplicity of suits. This jurisdiction has been classified under four beads: (1) Where from tbe nature of tbe wrong and tbe rules of legal procedure tbe same party, in order to obtain complete relief, is obliged to bring a number of actions all growing out of one wrongful act and involving similar questions of fact and law. (2) Where a dispute is between two individuals and one institutes or is about to institute a number of actions against tbe other, all depending upon tbe same issues of fact and law. (3) Where a number of persons have separate claims against tbe same party, arising from some common cause governed by tbe same legal rule and [568]*568involving similar facts, and the whole matter can be settled in a single snit. (4) Where the same party has or claims to have a common right against several persons. 1 Pom. Eq. Jur. (3d ed.) § 245. Under these heads the jurisdiction of equity has been invoked to prevent multiplicity of suits. Early instances of the exercise of this jurisdiction appear by what were known as bills of peace and bills to quiet title, l' Pom. Eq. Jur. (3d ed.) §§ 246, 247, 248. The appellant contends that his complaint is the “outgrowth from many of the principles which give creation to the bill- of peace,” “a modem bill of peace.” But it is not important under our practice by what name we call the complaint. The question is: Are the facts stated sufficient to entitle the plaintiff to relief in equity ? The gist of plaintiff’s claim for equitable interference is substantially that, upon the allegations of the complaint, each of the several defendants claims title to his particular tract through entry and adverse possession of one Jacob Muza in 1872, and that each defendant tacks his alleged adverse possession to that of Muza, and withoút such adverse possession of Muza he has no title, and that the determination of Jacob Muza’s adverse possession settles the title and right of all defendants. This presents sharply the main controversy in the case.
As appeal’s from the record before us, the present action was commenced in July, 1906. At that time eighty-four of the ejectment actions commenced by plaintiff against defendants between Eebruary, 1896, and September, 1897, were pending, and the main purpose of the present action is to sweep these ejectment suits into it and determine the rights of all the defendants in one equitable action, on the ground that there is such a community of interest between the plaintiff and each of the defendants, centering in the point in issue, as to warrant a court of equity in taking jurisdiction, and especially since one of the ejectment actions commenced has been determined in favor of the plaintiff by the supreme [569]*569court (115 Wis. 68, 90 N. W. 1019) and others by the trial courts. Belianee is placed upon certain statements in Pome-roy’s Equity Jurisprudence and a large number of cases are cited by appellant in support of the contention. While certain general language used by Mr. Pomeroy might be held, when considered in the abstract, to support in some degree the appellant’s contention, when construed with other parts of the learned author’s work it will be found to except cases like the one at bar. It is true that in discussing the third and fourth classifications heretofore referred to, Professor Pomeroy (1 Eq. Jur. 3d ed. § 268) uses the following very broad, general language, quoted in appellant’s brief:
“From a careful comparison of the actual decisions . . . and which are quoted under the foregoing paragraphs, the following propositions are submitted as established by principle and by authority, and as constituting settled rules concerning this branch of the equitable jurisdiction. In that particular family of suits, whether brought on behalf of a numerous body against a single party, or by a single party against a numerous body, which are strictly and technically hills of peace,’ in order that a court of equity may grant the relief and thus exercise its jurisdiction on the ground of preventing a multiplicity of suits, there does and must exist among the indivi duals composing the numerous body, or between each of them and their single adversary, a common right, a community of interest in the subject matter of the controversy, or a common title from which all their separate claims and all the questions at issue arise. It is not enough that, the claims of each individual being separate and distinct, there is a community of interest merely in the question of law or of fact involved or in the kind and form of remedy demanded and obtained by or against each individual.”
It will be seen that in this quotation from Pomeroy, giving it its broadest scope, there must be a community of interest in the subject matter of the controversy or a common title from which all the separate claims and all the questions at issue arise. Even this broad language does not bring the plaintiff’s case within it. Besides, the language of the first [570]*570part of tbe quotation is limited by other parts of the work, where it is said that it is not enough that the claims of each be separate and distinct — there must also be a community of interest in the questions of law and fact. And in his last edition (sec. 25TJ, 3d ed.) Mr. Pomeroy further emphasizes this exception h> the general rule stated. Moreover, the broad rule laid down by Pomeroy is criticised in Turner v. Mobile, 135 Ala. 73, 33 South. 132, and TribeUe v. III. Cent. R. Co. 70 Miss. 182, 12 South. 32. But the case at bar may be brought within the exceptions to the general rule recognized by Mr. Pomeroy. Here there is no such community of interest in the subject matter as is recognized by Pomeroy or a common title from which all the separate claims and all the questions at issue arise. Each defendant claims a separate and distinct tract of land from all others, and the subject matter of his controversy is separate and distinct .from the subject matter of every other defendant. Nor does his right to recover depend upon a common title, from which all the questions at issue arise.
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[567]*567Tbe following opinion was filed September 24, 1907:
EeewiN, J.
Tbe main contention of appellant is tbat equity will take jurisdiction upon tbe facts stated in tbe complaint on tbe ground of interminable litigation, occasioned by multiplicity of suits, fraud, combination, and conspiracy between tbe several defendants in maintaining tbeir defenses, and irreparable loss to tbe plaintiff. Tbe jurisdiction of courts of equity in a proper case to prevent multiplicity of suits is well established, but tbe doctrine is not always easy of application. Tbe multiplicity of suits sought to be prevented sometimes constitutes tbe inadequacy of legal remedies and calls forth tbe equitable jurisdiction. "When, however, we attempt to define tbe exact limits of this bead of equity jurisdiction, we find much difficulty in prescribing tbe exact limits of the jurisdiction. This becomes apparent from an examination of tbe numerous authorities cited in tbe able and exhaustive brief presented by tbe appellant. It is manifest without discussion tbat tbe alleged conspiracy and combination on tbe part of tbe defendants to maintain tbeir several defenses, or the great expense and delay alone, would not be sufficient to give a court of equity jurisdiction. Tbe right of tbe plaintiff to proceed in equity, therefore, upon tbe facts pleaded must be sustained, if at all, on tbe grorxnd of preventing a multiplicity of suits. This jurisdiction has been classified under four beads: (1) Where from tbe nature of tbe wrong and tbe rules of legal procedure tbe same party, in order to obtain complete relief, is obliged to bring a number of actions all growing out of one wrongful act and involving similar questions of fact and law. (2) Where a dispute is between two individuals and one institutes or is about to institute a number of actions against tbe other, all depending upon tbe same issues of fact and law. (3) Where a number of persons have separate claims against tbe same party, arising from some common cause governed by tbe same legal rule and [568]*568involving similar facts, and the whole matter can be settled in a single snit. (4) Where the same party has or claims to have a common right against several persons. 1 Pom. Eq. Jur. (3d ed.) § 245. Under these heads the jurisdiction of equity has been invoked to prevent multiplicity of suits. Early instances of the exercise of this jurisdiction appear by what were known as bills of peace and bills to quiet title, l' Pom. Eq. Jur. (3d ed.) §§ 246, 247, 248. The appellant contends that his complaint is the “outgrowth from many of the principles which give creation to the bill- of peace,” “a modem bill of peace.” But it is not important under our practice by what name we call the complaint. The question is: Are the facts stated sufficient to entitle the plaintiff to relief in equity ? The gist of plaintiff’s claim for equitable interference is substantially that, upon the allegations of the complaint, each of the several defendants claims title to his particular tract through entry and adverse possession of one Jacob Muza in 1872, and that each defendant tacks his alleged adverse possession to that of Muza, and withoút such adverse possession of Muza he has no title, and that the determination of Jacob Muza’s adverse possession settles the title and right of all defendants. This presents sharply the main controversy in the case.
As appeal’s from the record before us, the present action was commenced in July, 1906. At that time eighty-four of the ejectment actions commenced by plaintiff against defendants between Eebruary, 1896, and September, 1897, were pending, and the main purpose of the present action is to sweep these ejectment suits into it and determine the rights of all the defendants in one equitable action, on the ground that there is such a community of interest between the plaintiff and each of the defendants, centering in the point in issue, as to warrant a court of equity in taking jurisdiction, and especially since one of the ejectment actions commenced has been determined in favor of the plaintiff by the supreme [569]*569court (115 Wis. 68, 90 N. W. 1019) and others by the trial courts. Belianee is placed upon certain statements in Pome-roy’s Equity Jurisprudence and a large number of cases are cited by appellant in support of the contention. While certain general language used by Mr. Pomeroy might be held, when considered in the abstract, to support in some degree the appellant’s contention, when construed with other parts of the learned author’s work it will be found to except cases like the one at bar. It is true that in discussing the third and fourth classifications heretofore referred to, Professor Pomeroy (1 Eq. Jur. 3d ed. § 268) uses the following very broad, general language, quoted in appellant’s brief:
“From a careful comparison of the actual decisions . . . and which are quoted under the foregoing paragraphs, the following propositions are submitted as established by principle and by authority, and as constituting settled rules concerning this branch of the equitable jurisdiction. In that particular family of suits, whether brought on behalf of a numerous body against a single party, or by a single party against a numerous body, which are strictly and technically hills of peace,’ in order that a court of equity may grant the relief and thus exercise its jurisdiction on the ground of preventing a multiplicity of suits, there does and must exist among the indivi duals composing the numerous body, or between each of them and their single adversary, a common right, a community of interest in the subject matter of the controversy, or a common title from which all their separate claims and all the questions at issue arise. It is not enough that, the claims of each individual being separate and distinct, there is a community of interest merely in the question of law or of fact involved or in the kind and form of remedy demanded and obtained by or against each individual.”
It will be seen that in this quotation from Pomeroy, giving it its broadest scope, there must be a community of interest in the subject matter of the controversy or a common title from which all the separate claims and all the questions at issue arise. Even this broad language does not bring the plaintiff’s case within it. Besides, the language of the first [570]*570part of tbe quotation is limited by other parts of the work, where it is said that it is not enough that the claims of each be separate and distinct — there must also be a community of interest in the questions of law and fact. And in his last edition (sec. 25TJ, 3d ed.) Mr. Pomeroy further emphasizes this exception h> the general rule stated. Moreover, the broad rule laid down by Pomeroy is criticised in Turner v. Mobile, 135 Ala. 73, 33 South. 132, and TribeUe v. III. Cent. R. Co. 70 Miss. 182, 12 South. 32. But the case at bar may be brought within the exceptions to the general rule recognized by Mr. Pomeroy. Here there is no such community of interest in the subject matter as is recognized by Pomeroy or a common title from which all the separate claims and all the questions at issue arise. Each defendant claims a separate and distinct tract of land from all others, and the subject matter of his controversy is separate and distinct .from the subject matter of every other defendant. Nor does his right to recover depend upon a common title, from which all the questions at issue arise. Even assuming that each defendant claims through Muza, he is obliged to establish, his right and title through himself and intervening grantors to Muza and tack his adverse possession, and the fact that one or several defendants failed to make title by adverse possession to a separate and distinct tract would not necessarily establish that others could not make title as to other separate tracts, even though it be admitted Muza’s possession was a common item in the proof. The questions of law and fact and the comnui-nity of interest are not the same so as to bring the case even within the broad principle laid down by Pomeroy in his statement of a general rule. Perhaps the broadest language of Pomeroy, quoted from at length in appellant’s brief, will be found in 1 Pom. Eq. Jur. § 269. But even this language, in the light of other parts of the work, must be regarded as stating a rule not applicable to the case before us, and, as it [571]*571was intended by tbe author, must be read in the light of adjudicated cases. The effect to be giren this language, in an effort to state a general rule applicable to certain cases, is explained in a note to sec. 25T| in the last edition of Mr., Pomeroy’s raluable work. He there reviews the case of Turner v. Mobile, 135 Ala. 73, 33 South. 132, and shows that the rule is not applicable to ejectment actions where each action is based upon a separate tort for a distinct tract of land, since the determination of one of such actions does not necessarily establish or defeat the right of recovery in the others. It is true that it is not easy to reconcile all the judicial dicta upon the subject. Many cases may be found, some of which are cited by counsel for appellant, which tend to support the general proposition contended for by appellant. But a careful examination of them will show that they are quite dissimilar in their facts to the case before us. It is sufficient to say that we have found no case where equity took jurisdiction upon a state of facts similar to those stated in the complaint here.
We have examined the numerous authorities cited by appellant’s counsel, but time will not permit a discussion of them. Many of them are cases coming within the principles of bills of peace, and some fall under distinct heads of equity jurisdiction, other than to avoid a multiplicity of suits. Some of these cases are reviewed in a very able opinion in Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244, also relied upon by appellant. This was an action by a receiver against several stockholders, where it was claimed that the cause of action against each stockholder was the same. The court, quoting and approving the language of another court, said (188 U. S. 79, 23 Sup. Ct. 253) :
“The receiver’s cause of action against each defendant is, no doubt, similar to his cause of action against every other, but this is only part of the matter. The real issue, the actual dispute, can only be known after each defendant has set up [572]*572his defense, and defenses may vary so widely that no two controversies may he exactly or even nearly alike. If,' as is sure to happen, differing defenses are put in by different defendants, the bill evidently becomes a single proceeding only in name. In reality it is a congeries of suits with little relation to each other, except that there is a common plaintiff, who has similar claims against many persons.”
The subject matter of each ejectment suit is not the evidence of title to the land embraced in the suit, but is entirely separate and distinct from every other ejectment action respecting other separate and distinct tracts of land. The complaint in the instant action shows separate and distinct subject matters, and the subject matter of each ejectment suit is not the evidence or any item of evidence by which the defendant attempts to prove his title, but the particular tract of land claimed and the distinct tort by which it is claimed he wrongfully withholds it, together with the alleged title of the plaintiff. The subject matter of each ejectment action must be determined from the pleadings in each action. Nor are the issues the same, as appears from the complaint. It avers that each defendant claims a separate and distinct tract, that it is claimed Muza took possession in 1872, and that each defendant claims under Muza or some grantee or successor of Muza, presumably of different parcels and at different times after 1872; so the extent of Muza’s holding, as well as the extent of his entry, is at issue in each ejectment action. How, since each defendant claims a separate and distinct tract through Muza or some grantee or successor of Muza, it is manifest that the claim of adverse possession and continuity of holding of each defendant as to his separate tract under the allegations of the complaint is separate and distinct, and the establishment of title or want of title in one defendant by adverse possession does not necessarily settle the question of other defendants’ rights. The issues, therefore, are not the same, even if it is admitted that one item in the proof be the same in all the actions, to say nothing of [573]*573the issues to be tried in each action in case plaintiff prevails respecting improvements made in good faith -while each defendant held adversely. The eighty-four ejectment actions are a bundle of separate suits. 1 Pom. Eq. Jur. (3d ed.) § 251-J, and note; Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244. A multiplicity of suits does not mean a multitude of suits, as said in Johnson v. Swanke, 128 Wis. 68, 77, 107 N. W. 484:
“There is nothing alleged which can bring the case under that head of equity relating to the prevention of a multiplicity of suits. That does not apply merely because each of several parties jointly and severally liable may be independently sued. It applies where one party may be sued several times in relation to the same subject matter in its entirety, or in respect to some element or elements thereof.”
The statutes of this state secure to a person in possession of land two jury trials. It does not appear from the complaint that two trials were ever had in any case against any party claiming to hold under Muza, not even in the Budzipz Case, referred to and relied upon by appellant. 115 Wis. 68, 90 N. W. 1019. In the Budzisz Case the defendant recovered below, and judgment was ordered by this court for plaintiff on the ground that the evidence conclusively established that defendants made no title to the tract or part of the island claimed by them. This, however, does not establish that the defendants might not on other evidence recover upon a new trial. Much less is it conclusive upon the rights of other defendants claiming other separate and distinct tracts of the island. TTor do we see why the defendants should be precluded from mating title to their respective tracts in some other way than through Muza by the mere allegations of the complaint to the effect that they claim through him in an action brought for the purpose of sweeping them into equity, and thus depriving each of his right not only to one but to two jury trials. Upon any theory of the facts set up in the [574]*574complaint it is considered that equity ought not to take jurisdiction. Barnes v. Beloit, 19 Wis. 93; Brown v. Cohn, 88 Wis. 627, 60 N. W. 826; Johnson v. Swanke, 128 Wis. 68, 107 N. W. 481; Turner v. Mobile, 135 Ala. 73, 33 South. 132; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276; Phelps v. Harris, 51 Miss. 789; Rogers v. Rogers, 17 R. I. 623, 24 Atl. 46; Hughes v. Hannah, 39 Fla. 365, 22 South. 613; Thomas v. Council Bluffs C. Co. 92 Fed. 422; Merrill v. Lake, 16 Ohio, 373; 1 Pom. Eq. Jur. (3d ed.) § 177.
As has often been said by this and other courts, it is difficult to lay down any definite rule as to what special circumstances will enable the injured party to invoke the jurisdiction of a court of equity. Each case must rest in a large degree upon its own particular facts. As said in Johnson v. Swanks, 128 Wis. 68, 75, 107 N. W. 483:
“Manifestly, whether a case does or does not satisfy the test as to whether equity jurisdiction should be afforded is not always easy to determine. It must often be a matter of judgment, and necessarily so, where the precedents are not sufficiently clear to furnish the court a certain guide. In the latter situation the decision of the trial court should not be disturbed unless manifestly wrong. Where no certain guide exists as to any particular situation, by way of the general rule illustrated by precedents, as to whether it should be dealt with by equity jurisdiction, the matter in a large degree must be solved by the exercise of judicial discretion.”
The court below refused to exercise its equitable jurisdiction and sustained the demurrer, and we cannot say that in the light of the authorities its judgment should be disturbed.
By the Court. — The order appealed from is affirmed.