Eastman v. St. Anthony Falls Water Power Co.

By the Gowrt.

This is an action of an equitable nature, in which the relief sought is the removal of the dam complained of, and an injunction restraining the defendants from ever erecting or maintaining a dam so as to injure the plaintiffs’ described premises. The application for. the interference of a Court of Equity rests, as it could only rest, upon the alleged fact that the dam is an existing nuisance. It is contended by the counsel for the appellants, that the limitation provided in Section 12 of Chap. 60, found on page 533 Pub. Stat., applies to this case. By this section the time *143within which actions for relief, not before specifically provided for in chapter 60, must be brought, is fixed at ten years. It was held by this Court in Ozmun vs. Reynolds, (11 Minn., 459,) that chapter 60 in the matter of limitations of actions was applicable to suits in equity, as well as actions at law. This being so, section 12 miist be held to apply to this case, inasmuch as this is an action for relief, and an action for the limitation of which no specific provision is made in any section of chapter 60 preceding section 12. The cause of action here, which is the right to have the nuisance abated and enjoined, accrued simultaneously with the erection of the dam so as to injuriously affect the property of the plaintiffs below. See Thornton vs. Turner, 11 Minn., 336. The limitation of the action for relief sought in this case must be held to commence to run from that time. But in order that the defendants may avail themselves of the bar of the statute by derrmrrer, it must clearly appear from the complaint that the statute has taken effect. See Williams vs. Kennedy, 11 Minn., 314; McArdle vs. McArdle, ante, 98.

The complaint here alleges “that ever since the year 1857, the defendant has maintained a dam &c., * * * that a portion of the dam was erected by one Franklin Steele at a time prior to said first of July, 1856; that the other and the larger portion of said dam was erected by the said defendants subsequently to said first day of July, 1856; that the said dam so maintained by the said defendants, ever since the year 1857, has caused the water to flow back, &c. * * * * * * it qqpfg action was commenced September 11, 1865. It is obvious that it does not clearly appear from the allegations above quoted from the complaint, that the statute had run against the plaintiffs by the lapse of ten years after the cause of action accrued, and before the commenement of the present proceeding. The position taken by the counsel for the appel*144lant that the action is barred “inasmuch as there is nothing in the complaint to show but that all that part of the dam which causes the water to flow back on their (respondents’) land was built more than ten years before the commencement of this action, ” is then sufiiciently answered by saying that it does not clearly appear by the complaint that the part of the dam which causes the flowage complained of, was iuUt more than ten years before the commencement of this action. So far then as the demurrer rested upon Section 12, Chapter 60, above cited, it was properly overruled. We do not think any construction of section 11 of the “act to encourage the erection of mill-dams and mills ” is called for in the case at bar. As already stated this is an action of an equitable nature, and in accordance with the views expressed herein, and in Ozmun vs. Reynolds before cited, a Court of Equity in a case of this kind acts not in analogy or obedience to a statute of limitations applicable in terms to actions at law as distinguished from suits in equity, but in obedience to a statute specifically aimed at equitable actions for relief, like the case in hand, and by which the period within which proceedings may be instituted for the relief desired is fixed at ten years. Whether the right of action at law for damages is barred or not is then immaterial, as this is an equitable action for the removal of a nuisance, &c., and therefore governed by the statutory provision expressly applicable to suits of this nature.

As to Samuel H. Chute, the allegation that he is “aiding and abetting ” the respondents in maintaining the dam, is of course unavailing to constitute a cause of action against him. But it is alleged that “ the said Chute has, or pretends to have, some title to, or interest in the land on the east shore of the river at the point where the dam abuts against said shore.” If this be so, as one object sought in this action is *145the removal of the dam, and it may be necessary to enter upon the land so claimed by said Chute for the purpose of effecting such removal, and as his title to the land, if he have any, may give him title to or control of the dam as far as the thread of the stream, we think it entirely proper that he should be made a party. If he has no right title or interest to be affected, he can disclaim, but it is certainly proper that the plaintiffs should be allowed to call into court all parties who may be necessary to a final and complete disposition of the action in case the plaintiffs should succeed. Seager vs. Burns 4 Minn. 141.

The separate demurrer of Chute was therefore also properly overruled.

The order appealed from is affirmed and the action remanded.