Vliet v. Sherwood , 38 Wis. 159 ( 1875 )

Cole, J.

Had the motion to strike been directed to those portions of the second amended complaint which relate to the prescriptive right of the plaintiff to the flow of the water from the defendant’s reservoir to her mill in the same manner as it had been accustomed to flow for. the past twenty years, we are inclined to think the motion should prevail. We considered the foundation of this claim when the case was here on demurrer, and held that upon the facts stated the plaintiff acquired no such prescriptive right. 35 Wis., 229. Retaining the allegations relating to that right, where the plaintiff seeks relief upon the ground that the defendant wrongfully obstructs the natural flow of the water and interferes with her enjoyment of it as a riparian proprietor, can, as it seems to us, only serve to confuse and embarrass the court and opposite party. Those portions of the complaint, therefore, not being material to the cause of action stated, might properly have been stricken out as irrelevant and redundant matter, had a motion been made for that purpose. But the portions of the complaint which were stricken out were material and essential to show a cause of action. Without them the complaint is insufficient, as before remarked, and no cause of action is stated.

In the allegations which -were stricken out, the plaintiff, in substance, charges that the defendant, by his dam, obstructs the natural flow of the water in the stream; frequently by shutting the gates of his dam so as to entirely obstruct it, except so much as may leak through the dam; at other times, especially on nights and Sundays, by opening his gates so as to let pass a much larger quantity of water than would naturally flow ; in this way reducing the water in his reservoir so far below the top of the waste-weir that it does not flow over the same, and thus almost stopping the flow of the water, thereby hindering and preventing the plaintiff from the enjoyment.of the use of the water at her mill, which, as a riparian proprietor, she is legally entitled to. There is also an averment, upon information and belief, that the natural flow of the water from the lake, prior to'the erection of the defendant’s dam, would have propelled the plaintiff’s mill to its entire capacity for at least ten or eleven monrhs of the year, and one run of stone the balance of the time ; and that the natural flow would now propel her mill, did not the dam obstruct the waters.

These statements have all been stricken out, on the ground that they were irrelevant and redundantf The counsel for the plaintiff insists that such is not the character of the allegations; that they are neither irrelevant nor redundant. The allegations, they claim, cannot be pronounced irrelevant, because they tender a material and necessary issue; nor can they be said to be redundant, since, if they are stricken out, no cause of action remains. And these tests and definitions must be applied, according to the view of counsel, to determine the nature and character of the matter expunged.

We fully agree with counsel in the position that the allegations stricken out were neither irrelevant nor redundant, fl'hey are material and essential, constituting the only cause of action. If stricken out, with the exception of some verbal alterations and unimportant changes, the amended complaint will be the same as the original, which has been held bad on demurrer. Nor do we think the order striking out can be justified on the ground that the amendment substituted another cause of action, or so completely changed the cause of action originally stated that the court had no power to permit it to be made, within the decisions of Newton v. Allis, 12 Wis., 378; Sweet v. Mitchell, 15 id., 641; Larkin v. Noonan, 19 id., 82; Stevens v. Brooks, 23 id., 196, and-cases of that character, as claimed by defendant’s counsel. In the original complaint the charge was, that the defendant was obstructing the flow of the waters from the reservoir, which the plaintiff had acquired a prescriptive right to be supplied with ; while by the amendment it is alleged that the defendant obstructs the natural-flow of the water, and hinders and prevents the plaintiff from the use and enjoyment of the water at her mill, which, as a riparian proprietor, she is entitled to enjoy. The amendment was made by leave of court, in the exercise of that liberal power vested in it by the statute (13 Wis., 142); and there was no abuse of discretion in permitting it to be made. But the motion to strike out was not based upon the ground that the amendment entirely changed the cause of action, or substituted one cause of action for another, and therefore exceeded the limits of an amendment. The ground of the motion was, that the parts stricken out were irrelevant and redundant. The matter stricken out was certainly not irrelevant, but was pertinent, presenting a most material issue ; it was not redundant, because it really contained the only cause of action stated.

By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings.