(on motion for rehearing). Counsel for appellant Pabst Brewing Company request a rehearing on the ground that the amendment made to sec. 280.01, Stats., by sec. 375, ch. 541, Laws of 1935, had the effect of converting causes, of, action predicated upon sec. 280.01 from actions in equity to suits at law. This amendment was not mentioned in the original briefs, and the point now raised on the motion for rehearing presents an entirely new , issue not previously considered by us.
While plaintiffs’ complaint asks for an injunction to restrain further dumping as well as for an abatement of the nuisance, it is urged that a cause of action in equity for an injunction is barred in the instant case by the fact that it is conceded that the Pabst Brewing Company, prior to the commencement of the action, had permanently ceased its dumping operations on the Clark property., This being so, appellant’s counsel contend that the trial court is without power to grant the remedy of abatement due to the fact that the abatement of the nuisance has already been adjudged in the proceedings instituted in behalf of Milwaukee county. Assuming these premises, appellant’s counsel proceed to their main contention advanced in support of their motion for rehearing, viz., that if plaintiffs’ action for damages and abatement of nuisance under sec. 280.01, Stats., be held to *478bbe legal and not equitable in nature, there remains only the legal action for damages, as to which there would be a mis-joinder.
Before considering the effect of the amendment made to sec. 280.01, Stats., by the 1935 legislature, it should be pointed out that appellant’s counsel is in error in contending that the complaint states two separate causes of action under sec. 280.01, one being an action for damages and the other for abatement of the nuisance. It was clearly held in Carthew v. Platteville (1914), 157 Wis. 322, 147 N. W. 375, wherein the complaint asked for damages for the contamination of water through discharge from the defendant city’s septic tank and for abatement of the nuisance, that the complaint stated but one cause of action and, therefore, was not de-murrable on the ground that several causes of action had not been properly united. We deem such holding to be applicable to the instant complaint regardless of whether sec. 280.01, Stats., as it now reads as the result of the 1935 amendment thereto, be construed to make the action one at law, rather than one in equity.
To properly pass upon the point raised on rehearing it is necessary to review the history of sec. 280.01, Stats., in some detail. It was originally enacted in 1858, and is to be found in sec. 1, ch. 144, R. S. 1858, reading as follows:
“In actions for a private nuisance, when the plaintiff prevails, he shall, in addition to the usual judgment for damages and costs, also have judgment that the nuisance be abated and removed, unless the court before whom any issue of fact joined therein shall be tried, shall certify in the minutes of such trial, that the abatement thereof is unnecessary.”
Sec. 5, of such ch. 144, also provided:
“The circuit court for any county shall have jurisdiction in all matters concerning nuisances, and may grant injunctions to stay or prevent nuisances.”
*478cIn Remington v. Foster (1877), 42 Wis. 608, it was held that sec. 1, ch. 144, R. S. 1858, abrogated the equitable remedy which existed at common law to abate private nuisances, and substituted, in lieu thereof, the legal remedy embodied in the statute. It is rather difficult for us to understand how the court reached such conclusion, in view of its prior decision in Meek v. Pierce (1865), 19 Wis. *300, *303, wherein it was held that the rules of common law are not to be changed by doubtful implication and that a statute is not to be construed as changing the common-law rule if the statutory language “is not inconsistent with the idea that the rule of the common law is still to prevail.” Inasmuch as equity had the power at common law to abate private nuisances, there was nothing inconsistent with such principle contained in ch. 144, R. S. 1858. Nevertheless, this court, in a number of cases beginning with Remington v. Foster, supra, and ending with Stadler v. Grieben (1884), 61 Wis. 500, 21 N. W. 629, as pointed out in Carthew v. Platteville, supra, held that the remedy provided by sec. 1, ch. 144, R. S. 1858 (now sec. 280.01), was one at law and not in equity.
The legislature in enacting the Revised Statutes of 1878, combined the provisions of sec. 5, ch. 144, with those of sec. 1, and numbered the same sec. 3180. Such sec. 3180, R. S. 1878, read as follows:
“The circuit courts have jurisdiction of actions to recover damages for and to abate private nuisances, or a public nuisance from which any person suffers a private or special injury, peculiar to himself, so far as necessary to protect the rights of such person, and to grant injunctions to prevent the same.”
Injunctions to prevent nuisances have always been rendered in courts of chancery and not by courts of law. However, this change made by the legislature, in incorporating the reference to injunctions, previously set forth in sec. 5, *478dch. 144, R. S. 1858-, into new sec. 3180, R. S. 1878,- apparently was not noted by the court in subsequent decisions.
By ch. 190, Laws of 1882, sec. 3180, R. S. 1878, was amended so as to add thereto the following:
“. . . and in case such nuisance may work an irreparable injury, interminable litigation, or a multiplicity of actions, or either, or when the injury is continuous and constantly recurring, or when there is not an adequate remedy at law, or when the injury is not susceptible of adequate compensation in damages at law, then an action in equity may be brought and maintained and an injunction may be issued therein, and equitable action may be brought before the nuisance or right is' established in an action at law.”
The foregoing quoted language from the 1882 amendment seems to confirm the prior holdings of this court that the statute, as it stood prior to the amendment, provided for actions at law to abate nuisances and award damages. PIow-ever, in Carthew v. Platteville, supra, the prayer of the complaint asked for the following relief: (1) That the discharge of sewage from the defendant’s sewerage system be declared to be a public nuisance; (2) that the same be declared to be a private nuisance; (3) that the court order the same to be abated; (4) that the plaintiff recover $500 damages, together with costs and disbursements; (5) that plaintiff have such other and further relief as he might be found entitled to; and (6) that during the pendency of the action defendant be enjoined from permitting discharges from its sewerage System of a character to create a public or private nuisance. As pointed out by the dissenting opinion, the complaint contained no allegations to bring it within the addition made to the statute by the 1882 amendment. Nevertheless, the majority opinion held that the cause of action stated in the complaint was equitable and not legal in nature and stated as follows (p. 324) :
*478e“To restore the equitable remedy, ch. 190 of the Laws of 1882, which is the rest of the section as it now stands, was passed. This chapter expressly restored the equitable remedy of abating a nuisance in all cases coming within the calls thereof. Denner v. C., M. & St. P. R. Co., 57 Wis. 218, 221, 15 N. W. 158; Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629. And equitable actions have since been maintained under it. Fraedrich v. Flieth, 64 Wis. 184, 25 N. W. 28; Rogers v. John Week L. Co., 117 Wis. 5, 10, 93 N. W. 821; Karns v. Allen, 135 Wis. 48, 115 N. W. 357; St. Croix C. C. Co. v. Musser-Sauntry L., L. & M. Co., 145 Wis. 267, 130 N. W. 102. As an incident to a part of the proper relief money damages are asked, but that fact does not change the nature of that cause of action. It still remains a suit in equity.”
In St. Croix Consolidated C. Co. v. Musser-Sauntry L., L. & Mfg. Co. (1911), 145 Wis. 267, 269, 130 N. W. 102, a demurrer was interposed to the complaint on the ground that several causes of action had been improperly united. The complaint alleged that plaintiff’s land had been damaged by reason of a navigable stream overflowing its banks as the result of a dam erected by defendants, and prayed for the abatement of the alleged nuisance, the recovery of damages, and a temporary restraining order. The trial court overruled the demurrer, and ‘this court affirmed. Mr. Justice Marshall, speaking for the court declared that sec. 3180, Stats. 1898, “is substantially a declaration of the unwritten law with added features and simplification of procedure.” The court held that the complaint was good against demurrer whether it be considered as stating a cause of action at law or a suit in equity. However, as noted above, the later case of Carthew v. Platteville, supra, definitely held that such a complaint states a cause of action in equity.
In 1935, a long revisor’s bill was introduced as Bill 50, S., in the state senate at the instance of the revisor of statutes and enacted by the legislature as ch. 541, Laws of 1935. Some idea of the length of this bill may be gained from the *478ffact that the part' thereof amending sec. 280.01, Stats., was sec. 375. Such sec. 375 of said Bill 50, S., read as follows:
“Section 280.01 is amended to read:
“280.01 Jurisdiction over nuisances. The--circuit eeur ts-shall have jurisdic-tiomof- Any person may maintain an actions-to recover damages for and to abate a private nuisances- or a public nuisance from which an-y-person- he suffers a-private-or-special- injury peculiar to himself, so far as necessary to protect-the his rights ef-such person, and to grant obtain an injunctions-to prevent the same and in each such fta-isanee-may-work an irreparable in jury?-interminable litigation) a multiplicity-of actions y-or-Uther-,-or-the- injury is continuous and-Gonstantly-reGurringv or there-is- not-an-adequat-e remedy at law, o-r-the -injury is not-suseeptible-of adequate compensation In damages at law, then-an-action-in equity may be -maintained-and-an-in junction be-issued therein, and an equitable action may be brought before -the-nulsance- or -the-m-fringement-of-plaintiff-s-right-?s-established at daw.”
A revisor’s note to the entire Bill 50, S., stated that one of the purposes of the same was “to make the statutes more clear, concise, and compact.” In addition to the general note applying to the entire bill, there was a special note applying to sec. 375 of the bill which amended sec. 280.01, Stats., reading as follows:
“The circuit court is given plenary jurisdiction by Art. VII, s. 8, Const, and 252.08. The phraseology antedates the code. The distinction between actions and suits is abolished. Injunctions are covered by c. 268.”
It, therefore, seems apparent that there was no intent on the part of the revisor of statutes in drafting said Bill 50, S., in so far as it related to the amendment to sec. 280.01, Stats., to effect the radical change contended for by appellant’s counsel of restoring all actions for abatement of nuisances and damages under sec. 280.01 to the status which prevailed prior to the 1882 amendment, whereby such actions were *478gdeemed to be solely actions at law, even though the wording, as the result of the 1935 amendment, closely parallels the wording which the statute possessed prior to the 1882 amendment. The reference in the revisor’s note to the fact that a circuit court is given plenary jurisdiction by sec. 8, art. VII, Const., would indicate that such court always possesses the jurisdiction which existed at common law in courts of chancery to grant the relief set forth in the portion of the statute stricken by such revisor’s bill. It is, therefore, our considered judgment, that the 1935 amendment to sec. 280.01 did not convert the- nature of the action prescribed therein from one at equity to one at law.
If the allegations of a complaint are such as to state a good cause of action in equity at common law for abatement of a private nuisance, even though it be specifically alleged that the action was instituted pursuant to sec. 280.01, Stats., the suit is one in equity and not at law. For the purposes of the instant case, from the standpoint of the issue of mis-joinder, it probably makes no difference whether the action be considered to be one at law or in equity, in view of the holding in Carthew v. Platteville, supra, that a cause of action under the statute for damages and abatement of a nuisance constitutes one cause of action and not two. This is because at the time of the commencement of the action, assuming the allegations of plaintiffs’ complaint to be true, plaintiffs were entitled to have the nuisance abated, and therefore the cause of action affected all the parties to the action. However, whether the action be one at law or in equity is material on the question of whether it must be tried to a jury and possibly as to whether damages can be recovered for the period intervening between the date of the commencement of the action and the date of the judgment.
Appellant cites Milwaukee-Western Fuel Co. v. Milwaukee (1913), 152 Wis. 247, 139 N. W. 540, as holding that an *478haction to recover damages and for abatement of the nuisance is an action at law and not a suit in equity. • Apparently, in that case, the parties and the trial court considered the cause of action to be one at law for it was tried to a jury. However, the point as to the nature of the causé .of action was not before this court on appeal. We, therefore, do not consider such case to be authority for the point cited, any more than would Briggson v. Viroqua (1953), 264 Wis. 47, 58 N. W. (2d) 546, be authority for holding that we had construed sec. 280.01, Stats., as it existed after the 1935 amendment, as providing a remedy in equity. In the Briggson Case counsel for plaintiff on appeal stated that the complaint was grounded upon sec. 280.01, and the parties, the trial court, and this court, assumed, without the issue being raised, that the suit was one in equity.
By the Court. — Motion for rehearing denied with $25 costs.