#### Cobb and others vs. Smith and others. Same vs. Same. Newell vs. Smith and others.

*Injuries from mitt-dam: Bemedies*— When *action considwed. one to abate*— *Effect of prayer for general*relief— *Enjoining suit to abate.*

1. One whose land is flowed by a dam across a navigable stream may have his remedy in an action at law, either by a recovery of damages only, or by a further judgment abating the dam as a private nuisance (under § 1, chap. 144, R. S.)

2. But the action should not be considered one to abate«a nuisance *unless the complaint demands that judgment,*although the facts stated may entitle plaintiff to that relief. •-

3. Where a court of equity would refuse to restrain the building of a dam, on the ground that plaintiff had acquiesced in its construction and mainte- . nance, and that important interests had grown up around'it which would be injhred^by such a decree, it may for the same'réasons (under the Code) refuse judgment to abate as a nuisance, and grant as positive relief to defendants a perpetual injunction against the prosecution of a suit for that purpose. ■ ,

4. But such relief can be granted to defendants only where the abatement of the dam as a private nuisance is demanded in the complaint; and the counter equities are set "up and the injunction demanded in’the answer.

5. The complaint in this case contained no *specific*demand o'f judgment, except for damages, though it added the prayer for *general relief*usually found in bills in equity. After verdict fixing the damages, plaintiff procured a judgment to be signed by the clerk, which provided also fqr abating the dam. *Held,*that this part of the judgment should be stricken out on defendants’ motion.

APPEAL from tbe Circuit Court for *Rode*County.

Tbe plaintiffs, in each of these cases, appealed from an order of tbe circuit court modifying a judgment in their favor which had been entered by the clerk. The case will appear from the opinion. . , .. I

*262*Conger <& Sloan,*for appellants:

1. Tbe judgments were properly entered. (1.) It was the clerk’s duty to enter such a judgment in each case as tbe plaintiffs were entitled to under tbe pleadings and verdict. R. S. cbap. 132, §§ 16, 35. By § 1, cbap. 144, R. S., tbe right to recover damages for a nuisance is recognized as existing, and tbe remedy is extended so as to give tbe plaintiff tbe relief wbicb he could formerly obtain only by a writ of nuisance (3 Blacks. Com. 220-222; 2 Burr. Pr. 359; 1 Denio, 436; 4 id. 306); tbe section providing that in such actions, “ when tbe plaintiff prevails, be shall, *in addition*to tbe usual judgment for damages and costs, also have judgment that tbe nuisance be abated and removed.” Counsel further argued, that there was nothing in tbe decision in *Coll v. Smith,*16 Wis. 661, which denied plaintiff’s right to abate tbe dam as a nuisance by means of an action at law. (2.) It was not ineg-ular to enter the judgment without costs, and before notice of taxation. *Coates v. Smith,*29 How. Pr. 326. (3.) It was not necessary that tbe precise relief granted should have been specifically demanded in tbe complaint. R. S. cbap. 132, §§ 26, 29, and chap. 144, § 1; 2 Kern. 336; 26 Barb. 356 ; 30 id. 641; 20 N. Y. 62 ; 20 Wis. 540.

*Matt. H. Carpenter,*for respondents:

The pretended judgments in these cases, as to tbe particular in question, bad never been ordered by tbe court, judge oi referee; and tbe clerk bad no authority to sign them. R. S., cbap. 132, §§ 16, 32. 2. Section 1, cbap. 144, R. S., relates to *“*actions for a *private*nuisance.” This dam, if a nuisance at all, was a *public*nuisance. 3. This court bad already decided that tbe dam could not be abated. *Coll v. Smith,*16 Wis. 661.

PAINE, J.

These three appeals present tbe same question, and will be disposed of together. The actions were brought for a flowing of the lands of tbe plaintiffs by means of a dam *263erected and maintained by the defendants. Tbe litigation bas already been twice before this court. In *Newell v. Smith,*15 *Wis.*101, it was decided that the act purporting to allow the defendants to flow the lands of others, was unconstitutional, because it did not make any adequate provision for compensation. In *Cobb v. Smith,*16 Wis. 661, it was decided that the plaintiffs were not entitled to maintain an equitable suit to prevent the reconstruction of the dam, by reason of their long acquiescence in its maintenance, and in the erection of valuable mills and improvements depending on it for their power. And it was said that for the damage occasioned by the flowing, the plaintiffs had “ their common-law remedy.”

It seems that the complaints were then amended, so as to turn them into actions for damages, and the cases proceeded to trial, and the plaintiffs had verdicts fixing the amounts of damages respectively. On these verdicts the counsel for the plaintiffs procured the clerk to sign judgments, not only for the damages and costs, but also directing the sheriff to abate the dam. Applications were then made by the defendants to set aside the latter provision in each judgment, upon affidavits showing substantially the same facts as to acquiescence and the erection of valuable mills, etc., that appeared in the equity case above referred to, and also showing that this feature of the judgment was a surprise upon the defendants, who did not suppose that any such relief was sought in the action, and that the attention of the court was not called to it, nor was that of the defendant’s counsel, and that the clerk supposed, when he signed the judgments, that they were only judgments for the damages and costs in pursuance of the verdicts. The court below granted the applications, and from those orders these appeals are taken. Its decision was based entirely, as appears from the opinion printed in the case, upon the decision of this court in the equity case above cited. And the eouusel for the appellants have shown, that it does not follow from that decis*264ion that the action of the court below, now under consideration, was proper. There is undoubtedly a wide difference between a court of equity saying that it'will not lend its aid to enforce a legal right, where there are equitable reasons for its refusal, and a court of law saying that a party who recovers in an action at law shall not have such a judgment as the law directs. ■ In the one case the court has a discretion, based upon those equitable principles and considerations upon which the system of equitable jurisprudence was built up, which entitles it to refuse its peculiar relief in cases where it would cause oppression and injustice. But a court of law has no discretion, resting upon such considerations, to refuse to any party such a judgment as the law provides for, in an action wholly at law.' If, therefore, these actions, in the form which they finally assumed, are to he regarded, as the court below intimated, as actions for a private nuisance, within the meaning of section 1, chapter‘144, R. S., then I do not think it would follow that the plaintiffs were not entitled to the judgment there provided for, because this court had decided, that, for the reasons already mentioned, a court of equity would not interfere by injunction to prevent the reconstruction of the dam after it had been carried out by a flood.

Büt I do not think these actions should be regarded as actions for a private nuisance, within the meaning of that section. The injury complained of is undoubtedly a private nuisance, and the plaintiffs might have proceeded for the purpose *of'*abating the nuisance, if they had seen fit. But they were not bound to do so. They were at liberty to bring their actions merely for the recovery of the damages; and this, I think, is what they have done. It is true, the facts showing 'the injury to the land are all'stated, and with sufficient particularity to warrant a prayer for the abatement of the dam as a nuisance. But the complaints did not contain any such prayer. No such relief was asked. And under the present system of practice, which *265requires tbe plaintiff to state in bis complaint tbe relief be desires, I do not think an action should be regarded as an action to abate a nuisance, unless that relief is demanded in tbe complaint. This court bas decided, in *Gilett v. Treganza,*13 Wis. 472, that where tbe facts stated in a complaint' might sustain several different kinds of action, tbe prayer for relief will be held to determine tbe character of tbe action. And tbe decision is applicable here. Tbe plaintiffs asked only for damages, and that makes tbe actions, actions for damages only, although, upon the same facts, tbe plaintiffs might have been warranted in asking to abate tbe dam.

In Abbott’s Forms, vol. 1, p. 474, a form for a complaint in such an action is given, where such relief is expressly asked. Such a prayer was in tbe complaint in *Cromwell v.*Lowe, 14 Ind. 234, though under their statute tbe court bad a discretion to abate or riot. But, without any' express authority upon the point, our statute, requiring tbe plaintiff to state what relief be desires, is amply sufficient to show that, if be does not ask to have tbe dam abated, tbe action should not be considered as brought for that purpose.

' An action for a private nuisance, within tbe meaning of tbe section of tbe statute above referred to, should be held to be only an action tbe object of which is to abate tbe nuisapce. That such was its intent is clear from tbe fact that it provides that, in such eases, the judgment shall be that tbe nuisance be abated. And, under tbe present practice, an action cannot be considered of that character unless that relief is demanded in the'-complaint. Where- such relief is sought, it is usually by far tbe most important object of tbe suit; and where the plaintiff omits to ask for any such relief, tbe defendant has a right to assume that the action is not an action for a nuisance within tbe meaning of that, statute.

The justice and propriety of tbis ruling seem obvious, and this case fully illustrates it. Tbe complaint asking nothing'but *266damages, the defendants were thrown off their guard. They justly concluded that they were not called on to defend against any other claim. They therefore neglected to set forth in their answer such facts as might have entitled them to the affirmative interference of a court of equity to prevent the plaintiffs from enforping their legal right to the abatement of the nuisance. That upon a sufficiently strong case, a court of equity ought so to interfere, I. have no doubt. The same principles which induce it to refuse its own aid to the party whose land is flowed, where he has acquiesced for a long time in the maintenance of the dam, and in the erection of valuable mills and improvements dependent upon it, ought to induce it to give affirmative assistance to the other party, to prevent the assertion of a strict legal right, of trifling value, to the destruction of great and valuable interests that have grown up on the faith of such acquiescence. Undoubtedly the court should attach just conditions to such relief, and should compel the payment of all that the land-owner ought in equity to receive. But having done this, it should prevent him from asserting his legal right to abate the dam at the expense of such injustice and hardship to others. The cases establishing the principles upon which courts of equity refuse their own aid in such instances, are cited in *Sheldon v. Rockwell,*9 Wis. 166. And the following sustain the conclusion that the court would not only refuse its own aid, but would affirmatively interfere to prevent the party from asserting his strict rights at law, in a proper case: *Sprague v. Steere,*1 R. I. 259; *Trenton Banking Co. v. McKelway,*4 Halst. Ch. 84. The case from Rhode Island was itself a case of the former class, but it refers approvingly to several old cases of the latter. Under the old practice, the mode of obtaining this relief would have been by a separate equitable suit. Under the present, it could be obtained in the suit at law, but only by setting up the facts in the' answer, and ashing it as affirmative relief. Hence the ne-*267cessitv of indicating in tbe complaint tbe bind of relief sought by tbe plaintiff, that tbe defendant may have a fair opportunity to defend against it, or any part of it.

I attach no importance to tbe fact that these complaints contained tbe old equitable prayer for general relief. Such a prayer is inappropriate to a complaint in an action at law, and does not tend in any manner to supply tbe place of a specific demand of particular relief, which, if sought, gives character to tbe whole action.

If these complaints had asked for this relief, and the defendants had neglected to plead and present any equitable defense they might have had, they could not have been relieved on these motions. The judgments would then have been proper. But as they did not ask for it, and as the actions, for that reason, could not fairly be regarded as being brought to abate the nuisance, the defendants were not called on to defend against that relief, and that part of the judgments may well be regarded as a surprise upon them, from which they were entitled to relief on motion.

Eor these reasons, I think the orders appealed from should be affirmed.

*By the Court.*— Orders affirmed.