McDougald v. New Richmond R. M. Co. 125 Wis. 121.

is held that "when a testator enumerates particular kinds of chattels, and couples with them the word 'effects,' or equivalent words, the generality of his expression is to be restricted to such species of property as are ejusdem generis with the particular words." Lippincott's Estate: Reakert's Appeal, 173 Pa. St. 368, 34 Atl. 58. That case was followed in a later case in that state, in which it was held that, "where a residuary clause is omitted in a will, it is neither necessary nor proper to give the residue to some specific legatee upon a forced construction of words which do not indicate such a purpose in the mind of the testator." Schmidth's Estate: Becker's Appeal, 183 Pa. St. 641, 38 Atl. 1086. Of course, the rule ejusdem generis ordinarily limits the meaning of general words to things of the same class as those enumerated under them. 3 Words & Phrases, 2328, and cases there cited. We must hold that the words "and effects," as used in the will in question, are limited to household effects, as held by the trial court.

By the Court. The judgment of the circuit court is affirmed.

MCDOUGALD, Appellant, vs. NEW RICHMOND ROLLER MILLS COMPANY, Respondent.

April 8-May 2, 1905.

Trial by court: Findings: Duty of court: Judgments: Necessary parties: Practice: Mandatory statutes: Waiver: Appeal: Jurisdictional error: Estoppel: Statute of frauds: Equity: Specific performance: Injunctions: Infants.

1. A proper administration of sec. 2863, Stats. 1898, in an action tried by the court, requires findings made by the trial judge, each issuable fact being the subject of a separate finding, without any evidentiary or mere opinion matter, and also requires a specific decision as to each minor question of law and the final conclusion as well.

McDougald v. New Richmond R. M. Co. 125 Wis. 121.

2. A judgment should not be rendered till the situation is such that persons not before the court will not be liable to be prejudiced. All such persons are necessary parties to a full determination of the litigation and should be brought in by amendment. 3. Sec. 2610, Stats. 1898, providing that "when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in the subject matter of the controversy as require them to be made parties for their due protection, the court shall order them to be brought in," impliedly prohibits the determination of a controversy in the absence of any such person.

4. Sec. 2654, Stats. 1898, which provides that a failure by a party to object by a proper pleading as to any defect in the pleading of the opposite party other than failure to show jurisdiction of the court or facts sufficient to constitute a cause of action shall be deemed waived, does not apply to a defect as regards failure to bring in the necessary parties. As to that the mandatory part of sec. 2610 must be considered as in the nature of an exception or proviso to sec. 2654.

5. Failure to make the proper order under sec. 2610, upon a defect as regards necessary parties, being apparent, is jurisdictional error in that it is a disregard of the proper manner of exercising judicial authority.

6. The fact that a person not made a party to the litigation will not be bound by the result is not a certain test of whether he is or is not a necessary party. If the complete determination of a controversy as to a person not before the court requires the determination, to some extent at least, of the rights of another who is absent, such other is to be regarded as a necessary party. 7. Error in failing to bring in necessary parties to an action can be raised at any time while the court has jurisdiction to correct it, the same as any other jurisdictional error, using the term in its general sense.

8. If a person, for a valuable consideration paid or agreed to be paid to him by another, verbally promises that other the use of his land for enjoyment in such a way as to indicate that the same is to be permanent, and such other relying thereon enters upon such use, spends large sums of money in that regard and so changes his position that if the privilege were revoked he would suffer irreparable loss, equity jurisdiction may be invoked to prevent the use by such person of the statute of frauds to perpetrate a fraud by such a revocation and insistence, to effect, upon his legal rights. Equity can compel specific performance of such promise, it can enjoin interference with the

McDougald v. New Richmond R. M. Co. 125 Wis. 121.

enjoyment of the privilege by legal remedies or otherwise and refuse any equitable relief to such person so long as such other himself does equity.

9. In order that a person may have a standing in a court of equity to claim rights against another on the grounds of estoppel in pais, such person must show that he changed his position, reasonably relying upon the conduct of such person, so that if the latter were effectively allowed to change his attitude in respect to the matter, such person would be thereby prejudiced. 10. Within the rule stated, one cannot be held to have reasonably relied upon assurance by another of authority from a minor to bind him as regards a sale of his real estate, nor rely upon mere verbal assurance of such authority as to one not a minor where opportunity to know the truth of the matter is open and there is no reasonable ground for not dealing with the owner himself.

[Syllabus by MARSHALL, J.]

APPEAL from a judgment of the circuit court for St. Croix county: E. W. HELMS, Circuit Judge. Modified and affirmed. Action to abate a dam. The issues raised by the complaint, answer, and reply sufficiently appear from this abridgment of the findings:

1. Since September 16, 1898, plaintiff, then aged fifty years, has been in possession as tenant by curtesy of the land described in the complaint, and the title thereof subject thereto has been in his son Amos, then aged eighteen years, and his daughter, Helena, then aged thirteen years.

2. The northerly boundary of the land is Apple river, a navigable stream.

3. Defendant owns two flouring mills near the city of New Richmond, one being on the Willow river, which ordinarily affords about one fifth enough power to operate it, and the other situated about one half a mile north thereof, and not operated by the power of such river. The mills are some five miles from the dam in question and require about 250 horsepower.

4. One S. W. Campbell was authorized by ch. 135, Laws of 1887, to construct and maintain a dam across said Apple

McDougald v. New Richmond R. M. Co. 125 Wis. 121.

river at a place chosen by him on the northwest quarter of the northeast quarter of sec. 11, town 31, range 18 west, which with some adjacent land he owned.

5. Before September, 1901, defendant with a view of using such franchise obtained an option to do so and buy the Campbell lands, and also options for flowage rights on other lands, and made investigations and ran levels above the said Campbell lands as far as Star Prairie to determine the probable line of flowage.

6. Defendant contemplated building a dam so as to raise the water of Apple river to the tail water at the Bixby mill power above, necessarily overflowing considerable territory, including a portion of the land described in the complaint, and looking to the probabilities in that regard, during the latter part of 1901 and the first part of 1902, through its duly authorized agent, it interviewed the owners of such lands in respect to the compensation that would be demanded for the right to use the same so far as so affected. One of such owners was the plaintiff. On February 12, 1902, after being informed of the facts, he assured defendant that the compensation in his case and that of his children would not exceed $500, and it was mutually agreed that when the exact extent of the flowage should be ascertained the amount to be paid should be agreed upon, if possible, otherwise should be determined by arbitration, no suggestion being made at that or any other time by the person representing defendant that said right could, or would, be obtained otherwise.

7. On the date last mentioned defendant definitely deter mined to build the dam and thereafter, prior to July, 1903, pursuant thereto, it expended for real estate, the Campbell franchise, material, machinery, and labor about $27,776, no precaution being taken to acquire the flowage rights as to the lands in question because of the aforesaid agreement in respect thereto.

8. Plaintiff had knowledge of defendant's operations, but

McDougald v. New Richmond R. M. Co. 125 Wis. 121.

gave no intimation to it as to his attitude in respect thereto having changed, nor gave such intimation at any time prior to the commencement of this action, except as to the amount required as compensation for the right to flood the land. July 22, 1903, he protested in writing against the construction of the dam, accompanying the same with an offer to settle in full for $1,100.

9. Plaintiff at all times claimed authority to settle for the permanent right to flood such land as desired. At no time. did defendant's representatives claim it could acquire such right, except by private contract, nor did plaintiff act upon the supposition that it could be otherwise acquired.

10. Preparations on the ground for improving the waterpower commenced in the winter of 1902 and 1903. A canal, an essential part of the improvement, was constructed prior to July 1, 1903. Work upon the dam proper commenced. early in June of that year, and the same was completed after the commencement of this action.

11. The dam is not on the land described in the Campbell act, but is on adjacent land.

12. The dam at the crest raises the ordinary level of the water eleven and one half feet, and that may be increased to sixteen and one half feet with splash-boards. The height of the water will vary with the season, six to twelve inches. Facilities have been provided to convert the water-power into electrical energy and transmit the same for use at the mills aforesaid, the amount thereof that can be counted on at the delivery point being about 400 horse-power.

13. Before commencing the dam, defendant caused the probable limit of flowage of the land in question, and others, to be plainly marked by stakes, which, as to plaintiff's land, was known to him and substantially corresponded with the understanding when the agreement aforesaid was made. The limits will not be exceeded by a sixteen and one half foot head at the dam.