Arimond v. Green Bay & Mississippi Canal Co.

35 Wis. 41 | Wis. | 1874

Cole, J.

In the second defense it is in substance alleged, that another dam, similar to the defendant’s dam, was erected across the south channel of the outlet of Lake Winnebago, and that such dam was erected subsequently to and is at least two feet higher than its dam. It is averred that the two dams were erected and are maintained by different parties acting separately. It is then alleged “ that said two dams operating together set back the waters upon ” and injured the plaintiff’s land. In other words, the defense set up in this part of the answer is, that the injury of which the plaintiff complains is produced by the joint action of both dams. That is the substance of, and only possible construction to be placed upon, this defense. And it seems to us that it requires no argument to show that it is bad. We adopt the language used by the supreme court of Massachusetts in Wheeler v. The City of Worcester, 10 Allen, 591-601, as a sufficient answer to this defense: “ If the injuiy is produced by the joint action of several parties, and especially, if it is the result of the independent action of several parties contributing thereto, though not in combination or by concert, it is no defense that all are not made defendants; for when the injury does not arise from privity cf contract, but is a mere misfeasance, misjoinder of defendants cannot be availed of to defeat the action.” In Lull v. The Fox & Wis. Imp. Co., 19 Wis., 100, the party whose land was flowed brought his action for damages against defendants who maintained different dams. It was held that each defendant was only liable for the injury occasioned by his own dam, and. that several causes of action were improperly joined. But that case affords ho support to the position that when the damage is caused by the defendant and some other party by a joint action, as when “ the two dams operating together ” flow the land, the one whose property is injured has no remedy.

In the fourth defense, as we understand it, the ten years statute of limitation is relied on as a bar to the action. And first in regard to the question arising under the law of 1862 (ch. 184). That statute in terms applies to mill dams in the proper and strict sense of the words. The dam of the defendant is not such a dam, notwithstanding the matters stated in this part of the answer. The act of 1862 is therefore inapplicable, and such was the distinct intimation when this cause was here on the former appeal. 81 Wis., 816-889. It appears from this defense that the dam in question was built by Reed and associates under the charter granted in 1848. This, it is claimed, was ample legislative authority for the erection of the dam in the first instance; and as the defendant company has succeeded to all the rights and franchises of Reed and associates in the manner set forth in this defense, it is protected in maintaining the structure. It may be conceded that the dam which the charter of 1848 authorized Reed and associates to build might be a mill clam, but no authority was given to erect a dam which’should raise the water in Lake Winnebago above its ordinary level. As a matter of course, then, this law gave no right to any one to flow the plaintiff’s land. It is alleged that the dam built by Reed “ was and isa mill dam, and also an integral part of ” the work of the Pox and Wisconsin Improvement Company. Now so far as the dam “ became and is ” an integral part of the work of the improvement company, its character as a mill dam was lost. Por its primary and real object then was, not to furnish a water power for ordinary mills, but to improve the navigation of Fox River. And it seems to us very obvious that a dam built for the purpose of improving the navigation of a river is not a mill dam within the meaning of the law of 1862. And it is quite unimportant that the power which is created by the dam is used to propel mills. This does not change the character of the structure, and convert a dam intended to improve a navigable river into a mill dam within the statutory sense. And by the transfer of Reed and associates, the improvement company has no other or greater right to keep up and maintain the dam than it has to maintain any other dam constructed for the improvement of the navigation of the rivers.

Another defense set up in this part of the answer is, that the defendant company has been in the adverse possession of the easement of flowage which encumbers the plaintiff’s land, under a claim of title founded upon a written instrument, for ten years, and the action is therefore barred tinder section 6, cb. 188, R. S. The former opinion of the chief justice contains a sufficient answer to this position. It is suggested on the brief of counsel for the defendant that what is said by him on this question is obiter. We did not then and do not now so regard those remarks. They were designed to meet and decide the precise point here presented.

The matters set up in the fifth defense to show that the dam in question was a mill dam, and had been maintained for more than ten years so as to bring it within the statutory bar of the act of 1862, have already been noticed. It is averred that the dam, ever since it was built, has been a mill dam, and is also an essential, necessary and integral part or portion of said works of improvement, and necessary to the improvement of the navigability of said Fox and Wisconsin Rivers and to the proper development and enlargement of their capacity as common navigable highways. This shows the character of the dam, and that it is in fact a part of the work or system of improvement, and is not properly a mill dam, notwithstanding it may be used, or the power created by it, in connection with water grist or flouring mills and lumber mills for doing custom work.

The questions raised by the sixth defense have either already been anticipated in considering the other parts of the answer, or were decided adversely to the defendant on the former-appeal. There would seem to be no necessity for going over the same discussion. See Pumpelly v. Green Bay Company, 13 Wallace, 166.

By the Court — The order of the circuit court, sustaining the demurrer to the second, fourth, fifth and sixth defenses, is affirmed.

A motion for a rehearing was denied.