By the Court,
Cole, J.The appellant demurred to the complaint in the court below, on two grounds. First, that the court has no jurisdiction of the subject matter of the action ; and, second, that the complaint does not state facts sufficient to constitute a cause of action. We think both grounds untenable.
In support of the first cause of demurrer, it is said, that while the complaint shows that the respondent obtained an award of $881.14 in bis favor against the company, for damages resulting from the overflowage of his land, it does not allege any demand of payment; or that execution has been issued and returned unsatisfied; or that the company is irresponsible, or about to dispose of its property; or state any other matter for equitable interference. Therefore, it is claimed, the respondent’s remedy at law is adequate and complete. This objection shows that counsel have entirely misapprehended the object and purpose of this action. It is not resorted to, as auxiliary to one for the collection of the award, or for the purpose of enforcing payment by a judgment in the suit. This is not its object. But it is an application to a court of equity, to interfere and abate a dam which occasions irreparable mischief or permanent injury to the property of the respondent. By means of the dam, it is alleged, the waters of Rock river over*154flow and cover about twenty-eight acres of bis land, and therefore be asks that it be removed. If the company have no right to maintain the dam and overflow his land, we suppose there can be no doubt of the power of a court of equity to interfere and abate it. This is a well acknowledged head of equitable relief. Sheldon v. Rockwell, 9 Wis., 166; Angell on Watercourses, sections 444, 445, 446, et seq., and cases cited in the notes. It is very clear that the respondent’s remedy at law is not complete. Would an action for a mere trespass redress the mischief or afford relief? Obviously not. If the company is keeping up a dam in violation of the rights of the respondent, and to the permanent injury of his land, we know of no way in which he can obtain full relief except through the interposition of a court of equity. An action on the award would not certainly abate tlie dam. Neither would an execution, if the respondent could issue one on the award. The only question is, does the complaint present a ground for equitable relief? And this involves a consideration of the second ground of demurrer. The complaint shows that the respondent, before the commencement of this suit, instituted proceedings under the charter of the company, to obtain compensation for the damages resulting from the flowage of his land; that the arbitrators chosen for that purpose awarded him the sum of $884.14, which amount, it alleges, the company has not paid, nor offered to pay, and therefore, he asks that the dam be abated. We are really at a loss to know upon what principle of law or morals the company claims the right to overflow land not belonging to it, without paying the damages resulting from such flowage, according to its charter. This court sustained the validity of the charter of the company upon the same ground and for the same reason that it did the constitutionality of the general mill dam law. The decision affirming the validity of the latter enactment, we held, had become a rule of property which we did not feel at liberty to unsettle. But the principle of all decisions affirming such legislation is, that *155a mode is provided for assessing damages resulting from the flowage of lands, and that when these damages are paid, compensation or indemnity is made for the property taken. But we are not aware of any case where the pretension has been sustained, that a party might overflow the land of another without paying such damages as might be awarded therefor. We have no desire to be the first court that establishes such a precedent. And the claim that is really made here, in view of the allegations of this complaint, that the company can keep up its dam and overflow lands not belonging to it, without paying such damages therefor as may be awarded by arbitrators or juries, is one not to be discussed in a government of law and constitutions. The company may maintain its dam upon condition that it pays parties where lands are overflowed, such damages as may be awarded. In other words, it must make compensation according to its charter, or take down its dam. A citizen is not to be told when he comes into a court of equity asking relief from a permanent injury, or total destruction of the use of his property, that he should bring suit on the award, or issue execution and obtain compensation for his damages if he is able. It is the duty of the company to pay the damages when they are ascertained and determined. This duty is imposed upon it as well by its charter and the constitution, as by the principles of universal justice. And if it does not make this compensation, it can claim no immunity from such relief as a court of equity may afford.
The order of the circuit court, overruling the demurrer to the complaint, is affirmed.