(dissenting). I unite with the Chief Justice and Justice ViNJE in dissenting in this case. I think the reasoning in the court’s opinion violates the basic principles of our jurisprudence, that “there is no wrong without a remedy.” It violates one of the most vital principles of the Code that “All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided by law.” Sec. 2602, Stats. It violates one of the crowning features of the Code that “In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed, with a view to substantial justice between the parties.” Sec. 2668, Stats.
*414I think that to condemn the complaint as to Mrs. Prochnow because it does not show that she has any interest in the subject of the litigation, is to take a peculiarly technical view of the wrong complained of, — one which does violence to common-law rules, saying nothing about the broad liberal rules of our statutory system.
Why say, in effect, that the subject of the action is the real estáte and Mrs. Prochnow has no interest therein, — the whole is in her husband ? Technically such is the legal title but to all intents and purposes the home is community property. It cannot be sold or incumbered in any way without a conveyance of some sort executed by husband and wife. It is her home just as much as it is his. She has just as much interest in preserving its habitable quality as he. If there is any difference it is in her favor. Therefore the doctrine that only a person interested in the real estate can maintain an action for an injury thereto, it will be seen, has no application in favor of the defendant when the real nature of the action is appreciated.
It rather shocks one’s sense of justice to face a decision that a married woman has no such interest in the realty, which is partly hers for all practical purposes because it is the homestead of herself and husband, which will enable her to prosecute to prevent a violation of her right to enjoy it. True this court at quite an early day held that a married woman’s estate in the home is solely prospective and depends on the disability of the husband to deal with it without her consent, evidenced by her deed. I apprehend that if the court had to deal with the matter unhampered by precedent it would give a far greater dignity to her right. That is well indicated in Town v. Gensch, 101 Wis. 445, 449, 76 N. W. 1096, 77 N. W. 893; but to go to the length of holding that she cannot protect her right of enjoyment against acts detrimental to her right of personal security and immunity from undue annoyances, is *415to extend the doctrine which in Town v. Gensch, it was said, would not be done.
Some justification of the decision is made upon the ground that an action for a nuisance as affecting real estate is an action at law. But has not this court said over and over again and does not the Code declare that there is no distinction in. our system between actions at law and actions in equity, except as to mode of trial ? True an action for damages for a nuisance is an action requiring a jury trial unless the right thereto is waived; but that only applies where the primary relief sought is damages. Such is not the ease now. The primary right here which has been violated is that of enjoyment of the home under normally habitable conditions, and the primary relief sought is prevention of further invasion thereof. The claim for damages is purely incidental.
The whole reasoning of the court seems to be faulty in that it treats the subject of the action as real estate; while the real subject is the security and use of the real estate for a home. The violated, right is as much that of Mrs. Prochnoiu as of her husband.
The foregoing would seem in striking contrast with the decision of the court if the citations of authority there were not examined. When examined it will be seen that some of them do not deal with the question here and others support this dissent. Mash v. Bloom, 126 Wis. 385, 105 N. W. 831, was not an action to protect the homestead right. It was an action against a married woman to vacate a deed under which the homestead was acquired, and it was said that the wife,' though a proper, was not a necessary party, because a judgment against her alone would not be conclusive as to any widow’s right which she might at some time in the future acquire. It is easy to see how variant that is from an action to prevent impairment of the present habitability of a home. Hunt v. McDonald, 124 Wis. 82, 102 N. W. 318, is to the *416same effect. Town v. Gensch, 101 Wis. 445, 76 N. W. 1096, 77 N. W. 893, involved the validity of a deed of a homestead which was not signed by the wife. The question decided does not seem to bear even remotely on the case here. In Hufnagel v. Mount Vernon, 49 Hun, 286, 1 N. Y. Supp. 787, where it was said the whole right was in the husband, the claim in controversy was for damages for an injury to the realty. The gist of the action was the damages. Here, as said before, the gist of the action is the safe, continued habitability of the home. No damages are claimed except as incidental to the primary right to injunctive relief.
It seems that the court proceeded from an entirely wrong standpoint in rendering the decision. I cannot think it was not appreciated that the key to the logic in support of the result is that the action is for damages to the realty as the primary thing, while the dotídnant idea, in fact, throughout the complaint was preventive relief and the prayer was in harmony therewith. The court, or the writer of the opinion, must have been misled by decisions under sec. 3180 prior to the amendment of 1882. As that formerly stood the remedy in equity for a nuisance was abolished; but it was restored by the amendment, as its language clearly indicates and as this court has held. Stadler v. Grieben, 61 Wis. 500, 505, 21 N. W. 629. In that case the court decided, according to elementary principles, and the spirit of the statute that an action to abate a wrong injurious to health and comfort is just as legitimate as one injurious to property, saying, in effect, it is well settled that the law gives to every person protection against every substantial injury. Let the injury be tangible, or the discomfort perceptible to the senses of ordinary people . . . and an action accrues, either in law or in equity to remedy the wrong. That has been repeatedly approved in actions such as this, all being treated as equitable interferences. McCann v. Strang, 97 Wis. 551, 72 N. W. 1117; Middlestadt v. Waupaca S. & P. Co. 93 Wis. 1, 66 N. W. *417713; Rogers v. John Week L. Co. 117 Wis. 5, 93 N. W. 821. McCann v. Strang, supra, was precisely like tbis case. Husband and wife joined as plaintiffs. That having been several times referred to, doubtless was followed by the pleader in this case.
I apprehend that this court will not be content to long rest under the imputation of having put injuries to mere property above injuries to health and comfort, particularly the health and comfort of married women and their families. There is no such infirmity in the law. The present result is an infirmity in administration, not in the law. No court has more significantly than ours vindicated the maxim “There is no wrong without a remedy.” Can it be consistent with that to hold that a married woman suffers no remediable wrong by her home being rendered uninhabitable and her health and comfort jeopardized because, forsooth, she has no legal title to the property ?
The very reference I have made to the sources of the court’s logic, I think, plainly exhibits and refutes the error of it. We may freely concede that a person who has no present interest of a strictly legal nature in realty cannot maintain an action for damages to the property by the maintenance of a nuisance as was held in Kavanagh v. Barber, 131 N. Y. 211, 30 N. E. 235, and is laid down as elementary in 2 Wood on Nuisances (3d ed.) § 832a. We may also concede that courts, at times, have confused that with the question of whether an action will lie for equitable relief against a nuisance, and that is particularly true where the old remedy for relief in equity has been abolished. But it is all a matter of administration. This court has not, before, lapsed into such confusion as is evidenced by the cases cited, particularly McCann v. Strang. Courts of equity are not bound by precedents. Where there has been a tendency to administer the law in equity, as if the court were in a straight-jacket, so to speak, wrought out for it by precedents, the modern effort *418has been to avoid it and assert the most perfect independence of precedents where they would otherwise bar the way to justice. As to the particular subject, doubtless the legislature in amending sec. 3180 of the Statutes intended to afford the fullest and amplest remedy in equity for violated rights of the sort in question.