Opinion
April 2, 1953 —
May 5, 1953.
APPEAL from an order of the circuit court for Juneau county: BRUCE F. BEILFUSS, Circuit Judge. Modified and, as modified, affirmed.
For the appellant there was a brief by Brazeau Brazeau, attorneys, and Richard S. Brazeau of counsel, all of Wisconsin Rapids, and oral argument by Theo. W. Brazeau.
For the respondents there was a brief and oral argument by C. E. Macomber of New Lisbon.
Action by plaintiffs Thomas Peterson and Rose Peterson against defendant Wisconsin River Power Company for damages to their land during the year 1951 caused by seepage of water from defendant's dam in the Wisconsin river. Defendant answered and interposed a counterclaim to which plaintiffs replied. Defendant demurred to the reply, and from the order overruling the demurrer, defendant appeals.
Plaintiffs allege in the complaint that their 385-acre farm is located one and three-quarters miles northwest of the dam which defendant completed in 1949; that the dam created a large body of water, known as "Petenwell lake," extending north above the dam; that there are dikes over 14 feet high forming the east and west boundaries of the lake and extending many miles above the dam; and (paragraph 7):
"That the defendant corporation by the construction and operation of said dam and the creation of the resulting lake, has unlawfully and against the will of said plaintiffs caused the water level to be raised so that the said water has occupied, destroyed, and taken the plaintiffs' lands and destroyed the drainage on the said farmlands of the plaintiffs, depriving them of their unrestricted use of the same for the year of 1951, and rendering the lands hereinafter described wholly useless and unproductive to the plaintiffs' damage, without any right so to do or any acquisition thereof, . . ."
The prayer of the complaint is for judgment in the sum of $4,566 for such damages for the year 1951.
Defendant's answer admits all the allegations of the complaint except paragraph 7, which it denied, alleging that the dam was lawfully constructed; that plaintiffs knew of its construction at least three years prior to the commencement of this action and made no protest, opposition, or notice objecting to its construction; that defendant has a large investment of money in the dam which produces electrical power for residents of central Wisconsin; that it had no knowledge or information at any time that the construction of the dam would affect the plaintiffs' lands in any way and "verily believes that the flowage from said dam and said reservoir has not occupied or taken or destroyed plaintiffs' lands or destroyed the drainage therefrom, or that it has deprived the plaintiffs of the use thereof for the year 1951 or any other year, and denies upon information and belief that it has made their said lands useless or unproductive or in any manner restrained the use thereof, and denies that the plaintiffs have suffered the damages alleged. . . ." By way of counterclaim defendant further alleged:
". . . that if it should be found that the said dam and lake permanently take plaintiffs' lands, then said taking is required by the defendant for the operation of its said dam and water power and will continue in the future to be permanently so required; that it would be impossible to lower the level of said lake so created by said dam without irreparable damage to defendant's project, and that the court in such event should award to the plaintiffs the value of his premises so permanently taken, which value defendant alleges is trivial compared to the investment in and importance of defendant's project; that such award to the plaintiffs would avoid a multiplicity of suits and the plaintiffs' damages could be readily determined in a money award."
The prayer of the counterclaim is:
". . . that plaintiffs' complaint be dismissed on its merits and in the event that there is a permanent taking of plaintiffs' lands that the court award to the plaintiffs for such taking damages which may be found due the plaintiffs for such taking and adjudge that defendant have the right to permanently flow said lands upon the payment of such award, and that plaintiff do have and recover if such award be granted the costs and disbursements of this action, and that plaintiffs retain all interest in said lands except the right of defendant to flow the same for its purposes."
In their reply to the counterclaim plaintiffs allege:
". . . that representatives of the defendant corporation before the public service commission of Wisconsin stated that there would be no damage to the lands and premises of the plaintiffs and others whose farms are between the Wisconsin and Yellow rivers in the towns of Necedah and Armenia, Juneau county, Wisconsin, and therefore the plaintiffs by reason of such statements so made, relied thereon and believed that there would be no damage to their farmlands and premises. . . .
"That the defendant corporation has constructed on the farmlands of farmers in this community ditches to the depth of more than 14 feet, the purpose of which is to carry off the water from the lands of these plaintiffs and other farmers and it would therefore be improper to assess damages on a permanent basis rather than on a yearly basis as set forth in the complaint."
To this reply the defendant demurred on the ground that "it does not . . . state facts sufficient to constitute a defense, the facts stated being such as purporting to bar defendant's counterclaim by estoppel."
It clearly appears from the pleadings that the only question presented in this action is whether the damages to plaintiffs' lands are of a temporary or a permanent nature. This issue is set forth by the complaint and the answer. Since the counterclaim asks the court to grant relief which it is not authorized to grant in this action, it must be set aside, and the reply is therefore of no effect. See cases cited at 14 Callaghan's Wis. Dig., Pleadings, p. 282, sec. 224.
"It is a familiar rule that a demurrer searches the whole record and will be carried back to the first substantial defect; judgment will be given against the party who committed the first fault in pleading, . . ." 41 Am. Jur., Pleading, p. 455, sec. 232.
"In conformity with the rule that a demurrer to one pleading searches the record and will be carried back to the first substantial defect in prior pleadings, it is the rule that a demurrer to a reply will, on proper motion, be carried back to the defendant's pleading and will question its legal sufficiency. And if the defendant committed the first fault in pleading, the plaintiff is entitled to judgment. A demurrer to a reply also puts in issue the sufficiency of the plaintiff's complaint or petition." 41 Am. Jur., Pleading, p. 457, sec. 236.
If it is determined upon the trial that plaintiffs' injuries are of a temporary nature, they are entitled to the relief prayed for in their complaint.
"If the cause is temporary, there is a right to successive actions." 1 Am. Jur., Actions, p. 499, sec. 118. See Anno. L.R.A. 1916E, p. 1011 et seq.
If, on the contrary, it is determined that the damages are permanent, plaintiffs' exclusive remedy is under sec. 32.04, Stats., which provides, in part:
"If any owner of property desires to institute condemnation proceedings, he shall present his verified petition therefor to the county or circuit judge of the county where the land is situated."
As pointed out in Benka v. Consolidated Water Power Co. (1929), 198 Wis. 472, 474, 475, 224 N.W. 718:
"The allegations of the complaints and concerning which testimony was offered, clearly showed that the plaintiffs relied, in seeking to recover damages from the defendant, that they, as owners of real estate submerged or undermined by the ponding of the water in defendant's dam, were deprived, by reason thereof, of a substantial use of the lands or sustained a substantial interference with their rights of possession. Such claimed damages, if properly chargeable to the backwater in defendant's dam, was a taking of the property rights of plaintiffs in their respective real-estate holdings, within the meaning of that term in the statutes regulating condemnation proceedings. [Citing cases.] . . .
"There being such a statutory remedy furnished to plaintiffs in just such a position as here presented, namely, one where a defendant denies that there is any such taking and for that reason refuses to commence condemnation proceedings, then it is clearly the legislative purpose to permit the owner of the lands to institute proceedings to once and for all recover the damages consequent upon such taking." See also Price v. Marinette M. P. Co. (1928), 197 Wis. 25, 221 N.W. 381.
By the Court. — Order modified and affirmed; the counterclaim and reply are set aside; cause remanded to determine whether the injuries are of a temporary nature and the resultant damages thereof.