22 Wis. 607 | Wis. | 1868
The real question in this case is, whether the plaintiff, whose lands have been injuriously flowed, must resort for redress to the remedy given by the Mill Dam Law, or whether, under the circumstances, he may bring his common law action. It is alleged in the - complaint, that the defendants have, for more than two years last past, kept up and maintained an embankment on the eastern shore of Eourth Lake — a navigable body of water — which embankment extends about one hundred rods along the shores thereof; and have also kept up and maintained a dam at the outlet of the lake, for the'purpose of creating a water power for the. use of a certain mill and woolen factory there situated; by which embankment and dam the waters of the lake are obstructed in their natural flow, and are raised above their natural level, by means whereof the lands of the plaintiff, situated upon the western shore of the lake, are undermined, broken down, washed away and overflowed, to the extent of about fifty acres. It was admitted in the answer that the defendants kept up and maintained an embankment and dam as stated in the complaint, and that thereby the waters of the lake were raised above their natural level. On the trial, the plaintiff offered to prove that Eourth Lake was navigable in fact; but this evidence was objected to and ruled out, for the reason that it was immaterial. The plaintiff further offered to prove that the dam is not constructed across the stream connecting Eourth with Third Lake, which is the outlet of Eourth Lake, and that it does not dam that stream, but is erected upon the
Tbe judgment of nonsuit must therefore be affirmed.
By the Court. — Judgment affirmed.