23 Wis. 200 | Wis. | 1868
"When this case was up before, on an appeal from an intermediate order modifying tbe injiinctional order first granted (21 Wis. 477), it presented merely a dry legal question as to tbe proper construction of the words of the .deeds nnder which tbe defendants bold their water right. Tbe cause
Gohres testifies, that he is acquainted with the present side flume at the defendants’ mill. He built a portion of it in 1862. The same front part built by the witness, and the flume, are there yet. At the time he built it, he worked for Hiram W. Blanchard, the father of the plaintiff, who paid hinnfor it, and ordered him to build it. It was built for the purpose of con
Other evidence to the same effect as the above was offered by the defendants, but was excluded.
It furthermore appears from the whole ease, that no objection was taken to the mode of measurement which has always heretofore prevailed, namely, at the place of discharge, until about the time this action was commenced, or until the year 1864, when the defendant Boering was engaged in rebuilding his grist-mill, which had been destroyed by fire. The present plaintiffs then for the first time raised the objection.
Upon these facts, a question arises as to the degree or kind of acquiescence on the part of the proprietors of the dam or principal power, in the measurement or use of the water by the defendants or those under whom. they claim, which will preclude the application of the equitable remedy by injunction to restrain or prevent such measurement or use. The general doctrine of courts of equity upon this subject is well understood. This court has had frequent occasions to consider it in cases of this nature. Long acquiesence is a bar to the remedy, and especially where it will be productive of hardship and oppression, or public or private mischief. Sheldon v. Rockwell, 9 Wis. 166; Cobb v. Smith, 16 id. 661; Crosby v. Smith, 19 id. 449; Pettibone v. Railway Co., 14 id. 443. In this case there has been an acquiescence for nearly, if not quite, twenty years. It does not appear that the father of the plaintiffs, to whose rights they succeed, and who became the proprietor of the dam in 1854, and so continued until the time of his death
Again, before the death of Mr. Blanchard, and after Doering had converted the turning shop and sash factory, which formerly stood on the premises, into a grist-mill, which, it appears from the complaint, he did immediately after his purchase in June, 1862, we hear nothing of any opposition or complaint by Mr. Blanchard that the water was measured as it had ever before been, at the wheel. And again, after Mr. Blanchard’s death in April, 1863, and until the grist-mill was burned in the month of November of that year, we hear nothing of any oj>position or complaint on the part of the present plaintiffs. It was not, so far as appears from the present record, until the new mill was erected, or being erected, in 1864, and accurate arrangements were made for measuring the water at the wheel, that any objection was ever taken to that mode of measurement, and it was then first made by these plaintiffs. The new mill was put up and completed at an expense of several thousand dollars, which will be an almost total loss to the defendants in
We are.fully persuaded, under the circumstances of the case as now presented, that it ought not; but as much of the evidence offered by the defendants upon the question was improperly excluded by the court, and as the same seems to have been entered upon but very slightly on the part of the plaintiffs, we shall remand the cause for a new trial, in case the plaintiffs shall be so advised by their counsel.
In the examination of authorities upon this question, we have found none more nearly in point than the case of Sprague v. Steere, 1 Rhode Island E. 247. In that case the plaintiff based his claim for relief by injunction upon the language of a deed which he himself had made, and which clearly sustained his claim. It was a bill in equity to compel the defendant to lower his mill dam, and to restrict theflowage of the plaintiff’s land to the limits expressed in the grant. The plaintiff had granted the mill site and water privilege, with power to flow his land within certain limits, which limits had been exceeded, and his lands beyond flowed. This had been done with his knowledge, and without any objection on his part until after the dam, mill and machinery had been erected and put in operation. The period of time, however, during which his land had been flowed, was not very long. It was not more 'than four or five years. The court dismissed the bill, and turned the plaintiff over to his remedy at law, on the ground of acquiescence. Story’s Eq. Jur. 959 a, is cited by the court, where it is said, that no injunction will be granted to restrain á nuisance by the erection of a building, where the erection has been acquiesced in or encouraged by the. party seeking the relief; nor will it be granted in cases of gross laches or delay by the party seeking the relief to enforce his rights, as, for example, where, in case of a patent or copyright, the patentee has. lain by, and allowed the violation to go on for. a long time, without
It would seem from these cases, which were bills in equity filed by the parties committing the nuisance to restrain proceedings in actions at law brought by the parties injured by it, that acquiescence may sometimes constitute ground, as well for affirmative relief in equity against the party acquiescing, as for dismissing his application when he seeks redress against the other pakty.
Similar relief was granted in The Trenton Bank v. McKelway, 4 Halstead’s Ch. R. 84, where the defendant was perpetually enjoined from bringing ejectment for portions of a lot which he owned, over which a raceway had been constructed, on the ground that he made no objection to it, but, as the president and one of the acting managers, took part in the direction of the proceedings of the company by which the raceway was located and constructed over the lot. The complainants, however, having offered in their bill to pay the value of the lot, an issue was ordered to ascertain the value.