#### Beck and others, Respondents, vs. Ashland Cigar & Tobacco Company, Appellant.

*February 28*—

June *1, 1911.*

*Ejectment, when lies: Disseisin: Equity: Oontinuous trespass: Adequate remedy at law: Pleading: Demurrer: Parties: Joinder of plaintiffs: Remaindermen and life tenant.*

1. Where there is an intrusion into the premises of another either below or above ground hut he is undisturbed in his possession of the surface up to the 'true line, his remedy is by action for trespass or, if the trespass is a continuing one, by action in equity; but where a wall projects over the line so that the owner is dispossessed of the entire use of the disputed strip, ejectment is' the proper remedy and the jurisdiction of equity is excluded.

2. A general demurrer to a complaint in equity raises the objection that the plaintiff has an adequate remedy at law.

3. Under sec. 3074, Stats. (1898), it is not necessary that plaintiffs in ejectment should have identical interests nor that all have the right to recover the *possession*of the premises in dispute: it is sufficient that they have an interest therein which they are entitled to recover; and under sec. 3084 some of the plaintiffs may recover and the others not.

4. Sec. 2602, Stats. (1898), providing that all persons having an interest in the subject of the action and in obtaining the relief *325demanded may join as plaintiffs, applies to legal as well as to equitable actions..

5. Remaindermen may join in ejectment with, a life tenant who is entitled to the immediate possession of land held adversely by the defendant; and hence, where the remedy hy ejectment is adequate, they cannot maintain -an action in equity.

Appeal from an order of the circuit court for Ashland .county: JohN IL Pabisjet, Circuit vJudge.

*Reversed.*

This is a suit in equity to compel the defendant to remove from pláintiffs’ premises a portion of its brick wall and to recover damages for such encroachment. Plaintiffs and defendant own adjoining lots facing the principal business street in the city of Ashland, defendant’s lot being east of plaintiffs’. On the lot of the defendant there is a brick building twenty-two feet high, extending backward from the street 137 feet, the westerly portion of which overlaps plaintiffs’ land for a distance of sixty-five feet from the rear end. The strip so occupied by defendant’s wall is six inches in width at the rear end, and grows gradually narrower as it extends toward the street, until it comes to a point sixty-five feet distant from the rear of the building, so that the strip in controversy is sixty-five feet in length ánd varies in width from zero to six inches. The foundation of this wall also extends into plaintiffs’ land.

The complaint, after alleging that Jacob Beck died testate and that *Margareiha Beak*was appointed executrix of his will and is still acting as such, states that *Margareiha Beck*was given a life estate in the land in question, and the other plaintiffs, the children of Jacob Beck, the fee, subject to the life estate of their mother, and then alleges: “That by the said will all the right, title and interest in the said land, and the whole ownership of the same, and the right of possession of the same, passed to the plaintiffs above named in the interests and shares above set forth.” It further alleges: “That the whole of the above described wedge-shaped piece of land, which is a part of the land hereinabove described as now belonging to the *326plaintiffs above named, is covered, and during tie past ten years and more las been covered, and entirely witlleld from any sort of use by tie said Jacob Beck and tlese plaintiffs, by tie said wall of tie said building, and tley are, and during all tie time aforesaid lave been, thereby deprived of tie entire use of tie said wedge-slaped piece of land;” and tlat tie defendant “las claimed tie right to keep' and maintain, and does still keep and maintain, tie said wall upon tie premises of tlese plaintiffs, as above set forth, and las during all of said time aforesaid and now refuses to take down and remove tie same, or any part thereof therefrom.”

Tie defendant interposed a general demurrer to tie complaint, and from an order overruling the same it appealed.

Tie cause was submitted for tie appellant on tie briefs of' *William F. Shea,*and for the respondents on tie brief of *Lamoreux, Shea & Cate.*

Tie following opinion was filed March 14, 1911:

Vinje, J.

From tie foregoing statement of facts it appears tlat tie defendant is in tie actual possession of tie disputed strip at, above, and below tie surface of tie lot and excludes tie plaintiffs from tie possession thereof. Tie case therefore differs from tie cases of *McCourt v. Eckstein,*22 Wis. 153; *Zander v. Valentine Blatz B.*Co. 95 Wis. 162, 70 N. W. 164; *Rasch v. Noth,*99 Wis. 285, 74 N. W. 820; *Rahn v. Milwaukee E. R. & L. Co.*103 Wis. 467, 79 N. W. 747; and *Huber v. Stark,*124 Wis. 359, 102 N. W. 12, relied upon by tie plaintiffs. In *McCotmi v. Eckstein,*even though tie disseisin was occasioned by tie projection of about eight inches over upon plaintiff’s land of some of tie stones of defendant’s foundation wall below tie surface, it was held sufficient to entitle plaintiff, at lis election, to maintain ejectment, Dixow, O. J., however, doubting tie correctness of such holding. In *Zander v. Valentine Blatz B. Co.*the d&-*327fendant put in a foundation wall that -projected about fourteen inches beyond his line. The plaintiff occupied up to the true boundary and rested his building in part upon the projecting wall, and it was held that he thereby elected to treat the intrusion as a mere trespass and could not maintain ejectment. The case of *Rahn v. Milwaukee E. R. & L. Co.*was practically similar to the *Zander Case.*The projecting wall was underground and the plaintiff was in full possession of the surface of her lots to the true line. Her possession being undisturbed, she could not maintain ejectment, and as the trespass was a continuing one it was held equity would assume jurisdiction and settle, once and for all, the rights of the parties. *Basch v. Noth*and *Huber v. Stark*were cases of projecting eaves, and inasmuch as plaintiffs occupied the surface up to the true line it was held ejectment would not lie. The doctrine is therefore firmly intrenched in this state that when there is an intrusion into the premises of another either below or above ground, but he is undisturbed in his possession of the surface of his land up to the true line, his remedy is trespass and not ejectment, and, if the trespass is a continuing one, equity has jurisdiction thereof. The present case, however, does not fall within this rule, for here the plaintiffs are dispossessed of tfie entire surface of the disputed strip, and the possession thereof is alleged to be in defendant. So we have a case where plaintiffs assert the absolute legal title to land held adversely to them by the defendant, and claim, as to one of them at least, the immediate right of possession thereof. Were such immediate right of possession claimed as to all the plaintiffs, it is clear their'only remedy would be ejectment and not a suit in equity. In *Lee v.*Simpson, 29 Wis. 333, the court said:

> “The plaintiff having the legal title, .and neither averring nor admitting any equitable title or interest in these defendants, and not being himself in possession of the lands, but the *328same being adversely lield and possessed by tbe defendants, cannot maintain bis suit in equity against them. He bas an adequate and unquestionable remedy at law, by bis action of ejectment; and to tbat be must resort.”

This doctrine bas been reaffirmed in Trustees, *etc. v. Kilbourn,*74 Wis. 452, 43 N. W. 168, and *Thomas v. McKay,*143 Wis. 524, 128 N. W. 59.

Tbat a general demurrer to a complaint in equity raises tbe objection tbat plaintiff bas an adequate remedy at law is well settled. *Denner v. C., M. & St. P. R. Co.*57 Wis. 218, 15 N. W. 158; *Trustees, etc. v. Kilbourn,*74 Wis. 452, 43 N. W. 168; *Gullickson v. Madsen,*87 Wis. 19, 23, 57 N. W. 965; *Kruczinski v. Neuendorf,*99 Wis. 264, 74 N. W. 974; *Ellis v. Southwestern L. Co.*102 Wis. 409, 78 N. W. 583. Tbe precise question, therefore, presented by tbe pleadings is: Can tbe remaindermen join in ejectment with tbe owner of a life estate wbo is entitled to tbe immediate possession of land held adversely by tbe defendant ? Undoubtedly tbe life tenant, *Margaretha Beclc,*could maintain ejectment alone and as executrix. Sec. 3083, Stats. (1898), gives her such right. Does a joinder of tbe remaindermen defeat tbe action? Tbe complete legal and equitable title-is in tbe plaintiffs. They derive it from a common source, and do not come under tbe ban tbat persons wbo claim title hostile to each other cannot join. *Hubbell v. Lerch,*58 N. Y. 237. Tbe complete right to present possession is in plaintiffs. Perhaps under tbe common-law rule, tbat if one plaintiff in a joint action of ejectment cannot recover bis coplaintiffs cannot, no recovery of possession could be bad in this action, as only tbe life tenant is entitled thereto. *Marsteller v. M’Clean,*7 Cranch, 156; *Davis v. Coblens,*174 U. S. 719, 19 Sup. Ct. 832. But our statute bas changed that rule. Sec. 3074 provides:

> “No person can recover in such action [ejectment] unless be bas, at tbe time of commencing tbe action, a valid subsisting interest in tbe premises claimed and a right to recover tbe same or to recover tbe possession thereof or of some share, in*329terest or portion thereof, to be proved and established in sncb action.”

This indicates clearly that all the plaintiffs do not need to ■have identical interests nor that all need to have the right to recover the possession of the premises in dispute. It is sufficient if they have an interest therein that they are entitled to recover. The statute is in the disjunctive where it refers to the right to recover the interest in the premises and the right to recover the possession thereof; and sec. 3084 provides specifically that one or more of the plaintiffs in a joint action of ■ejectment may recover and others not.

But sec. 2602 provides that “All persons having an interest in the subject matter of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided by law.” The remaindermen certainly have an interest in the subject matter of the ejectment action and in obtaining the relief demanded, and the rule that all persons having such interest may join applies to legal' as well as equitable actions. Sch*iffer v. Eau*Claire, 51 Wis. 385, 8 N. W. 253. It was there held that a remainderman may join with persons owning intermediate estates in an action- to recover all damages, past or future, caused by the construction and maintenance of a mill-dam, on the ground that all were interested in the subject matter of the action and in obtaining the relief demanded, and it was clearly pointed out that the objection •of misjoinder of parties plaintiff was not taken in the interest of the defendant. Said the court:

> “So far as the defendant is interested, it would seem for his protection that all persons whose estate or interest in the same property has been injured by the act of the defendant should join in the action. The judgment would bar all the plaintiffs and save him the expenses of several suits instead of one.”

That is just the situation here, and that is just the object the statute sought to attain when it said that all persons having :an interest in the subject matter of the action and in obtain*330ing tRe relief demanded may Re joined as plaintiffs, namely,, to determine in one suit tRe rigRts of all parties in the subject matter of tRe litigation. A statute framed to secure sucR desirable results by sucR simple, direct means, and passed for-tRe express purpose of obtaining relief from tRe technicalities-of tRe common-law rules of pleading, sliould receive a liberal construction. However, in tRis case it is not necessary to go-beyond its strict letter. We conclude, therefore, that tRe complaint stated a good cause of action in ejectment as to all the-plaintiffs and that tRe demurrer thereto should Rave been sustained.

*By the Court.*— Order reversed, and cause remanded for further proceedings according to law.

Siebbckbe, J., took no part.

A motion for a rehearing was denied June 1, 1911.