The following opinion was filed December 13, 1887:
Taylob, J.
We do not understand that the learned counsel for the appellants have very seriously contended that their demurrers should be sustained upon the second ground alleged, but they have contented themselves with an endeavor to show, on the part of The Kaukauna Water-Power Company and those joining with them in the demurrer, that the court erred in not sustaining their demurrer on the ground that several causes of action have been improperly united, and, on the part of the Hunts, that no cause of action is stated against them, and that several causes of action have been improperly united. As some argument has been made in the briefs of counsel questioning the power of a court to exercise its equity powers for the purposes of regulating, determining, and apportioning the respective rights of parties in the same water-power, or in apportioning and regulating the use of the water of a river for hydraulic purposes by the several riparian owners adjacent to, and to whose lands such hydraulic power is appurtenant in whole or in part, we call attention to the following cases in which that power has been exercised by a count of equity with the approval of the most learned courts of this country; and we find no cases holding the contrary doctrine, and none have been cited by the very careful and learned attorneys for the appellants on the hearing of these appeals. Arthur v. Case, 1 Paige, 447; [668] Belknap v. Trimble, 3 Paige, 577; Gardner v. Newburgh, 2 Johns. Ch. 165; Olmstead v. Loomis, 9 N. Y. 423; 2 Story’s Eq. Jur. (12th ed.), secs. 927 et seq.; Fisk v. Wilber, 7 Barb. 395; Burden v. Stein, 27 Ala. 104; Tuolumne Water Co. v. Chapman, 8 Cal. 392; Pollitt v. Long, 58 Barb. 20; Burnham v. Kempton, 44 N. H. 78; Ranlet v. Cook, 44 N. H. 512; Bardwell v. Ames, 22 Pick. 353; Bemis v. Upham, 13 Pick. 171; Ballou v. Hopkinton, 4 Gray, 324; Lyon v. McLaughlin, 32 Vt. 423; Webb v. Portland Mfg. Co. 3 Sumn. 198; Wright v. Howard, 1 Sim. & S. 190; Mason v. Hill, 3 Barn. & Adol. 304; Pom. Rem, §§ 418-422; Frey v. Lowden, 70 Cal. 550; Janesville Cotton Mfg. Co v. Ford, 55 Wis. 199; Lawson v. Menasha Wooden Ware. Co. 59 Wis. 397, 398; Allard v. Carleton (N. H.), 3 Atl. Rep. 313.
These cases and numerous others clearly sustain the courts in the exércise of their equity powers in adjusting and protecting the rights of parties interested in hydraulic powers. One reason for the interference of a court of equity in such cases is, perhaps, as well expressed in the case of Lyon v. McLaughlin, supra, as in any other. The court in that case say: “The uncertainty of the extent of the prospective injury, and the impossibility of ascertaining the measure of just reparation, render such injury irreparable in a legal sense, and therefore a court of equity will entertain jurisdiction of such a bill, and grant the proper remedy, notwithstanding the respective rights of the parties to the use of the water are in dispute, and depend entirely upon the legal construction of their deeds.” In the case of Belknap v. Trimble, supra, it was held “ that where different mill-owners have a common right to an artifical use of water for their respective mills, the court of cha‘hcer,y has jurisdiction so to regulate the common use as to preserve the rights of each.” In Frey v. Lowden, supra, the court say there is no doubt of the power of the court of equity to ascertain and determine the extent of the rights [669] of propertjr in water flowing in a natural watercourse, acquired by persons who hold and are entitled to them, and to regulate between or among them the use of the flow of the water in such a way as to maintain equality of rights in the enjoyment of the common property. But it is unnecessary to cite further cases in support of the equity powers of the courts in such cases.
The mere statement of the case, as made in the complaint in this action, shows the absolute necessity of the exercise of such a power by the courts, in order to protect the rights of the plaintiffs, as well as the rights of all others interested in the use of the hydraulic power created by the fall of the water of the river at the place mentioned. There is no question in this case as to the unsettled and unascertained rights of the respective parties, and the case does not come within the rule laid down in some of the cases, that when the plaintiff’s right is disputed, and not clear, he must first have his right settled in an action at law.
The defendants having demurred to the complaint, all the material facts alleged are admitted for the purpose of the decision upon such demurrer. It is admitted, therefore, that in its natural state the water of said river would flow in the south, middle, and north channels as stated in such complaint, and it is further admitted that the defendant The Kaukauna Water-Power Company has turned the water which was accustomed to run to the plaintiffs’ dam and pond on the middle channel, away from such channel, and that it threatens in the future to continue such diversion of the water, to the destruction of the rights of the plaintiffs in the water-power created by the Mead & Edwards dam and pond, and upon which the beneficial use of their machinery and mills depends, so that, as against The Kaukauna WaterPower Company and their grantees and lessees, there is certainly a clear cause of action stated in the complaint.
It is urged as one ground of demurrer that the complaint [670] also states a separate cause of action against the Green Bay & Mississippi Canal Company, and for that reason the complaint is subject to the objection that several causes of action are improperly joined. We think this contention is not sustained by the facts stated. The complaint does not state that the diversion of the water-from the north channel by the canal company into their canal has taken any of the water from the river which was accustomed to run through the middle channel. The allegations in the complaint, so far as they regard the canal company, would not, if proved, entitle the plaintiff to any damages or relief against said company. We think the demurrer cannot be sustained upon that ground by either of the defendants.
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The following opinion was filed December 13, 1887:
Taylob, J.
We do not understand that the learned counsel for the appellants have very seriously contended that their demurrers should be sustained upon the second ground alleged, but they have contented themselves with an endeavor to show, on the part of The Kaukauna Water-Power Company and those joining with them in the demurrer, that the court erred in not sustaining their demurrer on the ground that several causes of action have been improperly united, and, on the part of the Hunts, that no cause of action is stated against them, and that several causes of action have been improperly united. As some argument has been made in the briefs of counsel questioning the power of a court to exercise its equity powers for the purposes of regulating, determining, and apportioning the respective rights of parties in the same water-power, or in apportioning and regulating the use of the water of a river for hydraulic purposes by the several riparian owners adjacent to, and to whose lands such hydraulic power is appurtenant in whole or in part, we call attention to the following cases in which that power has been exercised by a count of equity with the approval of the most learned courts of this country; and we find no cases holding the contrary doctrine, and none have been cited by the very careful and learned attorneys for the appellants on the hearing of these appeals. Arthur v. Case, 1 Paige, 447; [668] Belknap v. Trimble, 3 Paige, 577; Gardner v. Newburgh, 2 Johns. Ch. 165; Olmstead v. Loomis, 9 N. Y. 423; 2 Story’s Eq. Jur. (12th ed.), secs. 927 et seq.; Fisk v. Wilber, 7 Barb. 395; Burden v. Stein, 27 Ala. 104; Tuolumne Water Co. v. Chapman, 8 Cal. 392; Pollitt v. Long, 58 Barb. 20; Burnham v. Kempton, 44 N. H. 78; Ranlet v. Cook, 44 N. H. 512; Bardwell v. Ames, 22 Pick. 353; Bemis v. Upham, 13 Pick. 171; Ballou v. Hopkinton, 4 Gray, 324; Lyon v. McLaughlin, 32 Vt. 423; Webb v. Portland Mfg. Co. 3 Sumn. 198; Wright v. Howard, 1 Sim. & S. 190; Mason v. Hill, 3 Barn. & Adol. 304; Pom. Rem, §§ 418-422; Frey v. Lowden, 70 Cal. 550; Janesville Cotton Mfg. Co v. Ford, 55 Wis. 199; Lawson v. Menasha Wooden Ware. Co. 59 Wis. 397, 398; Allard v. Carleton (N. H.), 3 Atl. Rep. 313.
These cases and numerous others clearly sustain the courts in the exércise of their equity powers in adjusting and protecting the rights of parties interested in hydraulic powers. One reason for the interference of a court of equity in such cases is, perhaps, as well expressed in the case of Lyon v. McLaughlin, supra, as in any other. The court in that case say: “The uncertainty of the extent of the prospective injury, and the impossibility of ascertaining the measure of just reparation, render such injury irreparable in a legal sense, and therefore a court of equity will entertain jurisdiction of such a bill, and grant the proper remedy, notwithstanding the respective rights of the parties to the use of the water are in dispute, and depend entirely upon the legal construction of their deeds.” In the case of Belknap v. Trimble, supra, it was held “ that where different mill-owners have a common right to an artifical use of water for their respective mills, the court of cha‘hcer,y has jurisdiction so to regulate the common use as to preserve the rights of each.” In Frey v. Lowden, supra, the court say there is no doubt of the power of the court of equity to ascertain and determine the extent of the rights [669] of propertjr in water flowing in a natural watercourse, acquired by persons who hold and are entitled to them, and to regulate between or among them the use of the flow of the water in such a way as to maintain equality of rights in the enjoyment of the common property. But it is unnecessary to cite further cases in support of the equity powers of the courts in such cases.
The mere statement of the case, as made in the complaint in this action, shows the absolute necessity of the exercise of such a power by the courts, in order to protect the rights of the plaintiffs, as well as the rights of all others interested in the use of the hydraulic power created by the fall of the water of the river at the place mentioned. There is no question in this case as to the unsettled and unascertained rights of the respective parties, and the case does not come within the rule laid down in some of the cases, that when the plaintiff’s right is disputed, and not clear, he must first have his right settled in an action at law.
The defendants having demurred to the complaint, all the material facts alleged are admitted for the purpose of the decision upon such demurrer. It is admitted, therefore, that in its natural state the water of said river would flow in the south, middle, and north channels as stated in such complaint, and it is further admitted that the defendant The Kaukauna Water-Power Company has turned the water which was accustomed to run to the plaintiffs’ dam and pond on the middle channel, away from such channel, and that it threatens in the future to continue such diversion of the water, to the destruction of the rights of the plaintiffs in the water-power created by the Mead & Edwards dam and pond, and upon which the beneficial use of their machinery and mills depends, so that, as against The Kaukauna WaterPower Company and their grantees and lessees, there is certainly a clear cause of action stated in the complaint.
It is urged as one ground of demurrer that the complaint [670] also states a separate cause of action against the Green Bay & Mississippi Canal Company, and for that reason the complaint is subject to the objection that several causes of action are improperly joined. We think this contention is not sustained by the facts stated. The complaint does not state that the diversion of the water-from the north channel by the canal company into their canal has taken any of the water from the river which was accustomed to run through the middle channel. The allegations in the complaint, so far as they regard the canal company, would not, if proved, entitle the plaintiff to any damages or relief against said company. We think the demurrer cannot be sustained upon that ground by either of the defendants.
The only other question is whether the Hunts were properly made parties to the action. If the only relief sought was to restain The Kauhauna Water-Power Company from diverting the water from the middle channel in the future, it might be said there was no reason for making the Hunts, or any others except the KavJtauna Company and those claiming under them, parties to the actiou. But that is not the only or the principal relief asked. In addition to the relief claimed against the The Kaiolcauna Water-Power Company and those claiming under them, this court is asked to settle and determine what share or portion of the flow of the water of said river, where the same passes islands 3 and 4, in township No. 21 N., of range 18 E., is appurtenant and of right should flow in the south, middle, and north channels of said river respectively. If the complaint states facts which entitle the plaintiffs to this relief, and that it does is shown by the cases above cited, then it is evident that, in order to settle the rights of the respective owners of the water-rights in said channels, all persons interested in the water-rights in said channels, or in either of them, are proper parties to the action. If it be urged that the plaintiffs are only interested in having it settled as to what [671] volume of water should of right flow in the middle channel, the answer to that proposition is that the settlement of that right will necessarily affect the rights of the owners of the water-power in the other channels. The individual rights are so connected that one cannot be settled without affecting all the others.
It is urged, however, that if all the persons having any interest in the flow of the water of the river in the south, middle, and north channels are interested in the settlement of the questions sought to be adjudicated in this cáse, and so are proper parties in an equity proceeding for that purpose, and are proper parties under the provisions of sec. 2603, R. S., it is not apparent, on the facts stated in the complaint, how the Hunts, who owned island No. 2 only, and which is below islands Nos. 3 and 4, which form the three channels in which the flow of the water of the river is sought to be apportioned and determined, have any interest in settling that question. It is true, the complaint does not expressly allege that the Hunts have any interest in the matters to be determined in this action, nor that they claim any such interest, but it alleges facts showing that under certain circumstances they might have an interest; that is, that complaint shows that island No. 2 is so situated' with regard to the flow of the waters through the south and middle channels that the owners might be interested in the water flowing through such channels if the flow through such channels can be utilized for hydraulic power on the shores of said island, and upon that point the plaintiffs allege they have no knowledge. If the owners of this island can utilize the flow of the water for hydraulic purposes on the shores of said island, then it is quite apparent that they may be interested in having it flow in greater volume through one or the other of these channels, depending upon the facility with which hydraulic powers can be created on one or the other of the shores of said island. As [672] upon the face of the complaint the Hunts may have an interest in the questions to be determined in the case, we think they may be properly made parties to the action under the section of the statute above quoted. If they are in fact indifferent, or have no interest in the matter, they can disclaim any such interest, and may upon such disclaimer be dismissed therefrom. If they have any interest, they can set it forth and have it protected, and so have an end of litigation. The effect of the allegations in the complaint as to island No. 2 and its ownership by the Hunts, is that the Hunts may have an interest in the question to be litigated, although the nature of such interest is not known by the plaintiffs, and they are asked to come into court and disclose their interest or disclaim having any interest in the controversy, so that they cannot hereafter disturb the settlement of the rights of the parties as determined by the judgment in this action. We think they were properly made parties defendant. Wilson v. Castro, 31 Cal. 420.
By the Court. — • The order of the circuit court overruling the several demurrers of the appellants is affirmed, and the cause is remanded for further proceedings.
Motions for a rehearing on each of the appeals were denied February 28, 1888.