Newell v. Smith

Wisconsin Supreme Court

Newell v. Smith

26 Wis. 582

DecidedJune 15, 1870

StatusPublished

This text of 26 Wis. 582 (Newell v. Smith) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Newell v. Smith, 26 Wis. 582 (Wis. 1870).

Pincite

Opinion

Cole, J.

It was not necessary for the plaintiff to make the grantees of the right to draw and use water from the power created by the dam, parties to this suit, so far as abating the dam is concerned. If they have any good reason for appearing in the suit for the protection of their rights, let them come in and defend. But this dam is a nuisance, wrongfully and unlawfully kept up and maintained to the injury of the plaintiff. The owners of that dam are before the court. They refuse to pay the plaintiff for the property they have overflowed, and virtually destroyed, by maintaining the dam at its present height. It is full time that the plaintiff was paid for his property, or the dam abated. Upon what principle is it that, in a common law action for the commission of a wrong to the injury of another — in other words in an action for a tort — the joinder of all the trespassers in the action becomes essential to any recovery? We supposed.the rule to be elementary, that in actions of this character against only one of several joint trespassers, the non-joinder of the others was no objection. It was at the election of the plaintiff to join them all, or not. If the grantees of the right to draw and use water from the power created by the dam are indeed deeply interested in maintaining the dam at its present height, there would not seem to be any very great difficulty in protecting their interests. They can pay for the property [585]*585which is injured by the dam and rendered worthless to the owner. When they have .done this, they will be in an attitude to come into court and resist a judgment to abate or remove the dam. But, so far as the proprietors of the dam are concerned — the persons who originally built and who have maintained it — if they do not choose to pay for the property belonging to the plaintiff which they have destroyed, the dam should be abated.

By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.

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Cole, J.

It was not necessary for the plaintiff to make the grantees of the right to draw and use water from the power created by the dam, parties to this suit, so far as abating the dam is concerned. If they have any good reason for appearing in the suit for the protection of their rights, let them come in and defend. But this dam is a nuisance, wrongfully and unlawfully kept up and maintained to the injury of the plaintiff. The owners of that dam are before the court. They refuse to pay the plaintiff for the property they have overflowed, and virtually destroyed, by maintaining the dam at its present height. It is full time that the plaintiff was paid for his property, or the dam abated. Upon what principle is it that, in a common law action for the commission of a wrong to the injury of another — in other words in an action for a tort — the joinder of all the trespassers in the action becomes essential to any recovery? We supposed.the rule to be elementary, that in actions of this character against only one of several joint trespassers, the non-joinder of the others was no objection. It was at the election of the plaintiff to join them all, or not. If the grantees of the right to draw and use water from the power created by the dam are indeed deeply interested in maintaining the dam at its present height, there would not seem to be any very great difficulty in protecting their interests. They can pay for the property [585]*585which is injured by the dam and rendered worthless to the owner. When they have .done this, they will be in an attitude to come into court and resist a judgment to abate or remove the dam. But, so far as the proprietors of the dam are concerned — the persons who originally built and who have maintained it — if they do not choose to pay for the property belonging to the plaintiff which they have destroyed, the dam should be abated.

By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.

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Bluebook (online)

26 Wis. 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newell-v-smith-wis-1870.