| Wis. | Jun 15, 1872
The nature, qualities and duration of tbe user, or enjoyment of an easement, which, will constitute a valid right thereto by prescription, are precisely the same as are required by the statute of limitations to enable the occupants of lands to defeat the title of the true owner. An occupancy of the lands, to have this effect, must be continued, uninterrupted and adverse, for the length of time prescribed by the statute. By analogy to the general statute of limitations, and in the absence of any special statutory provision on the subject, the defendants will fail to show a right by prescription to flow the lands of the plaintiff, unless they aver and prove that they, or their grantors, have used and enjoyed such easement, adversely to the plaintiff, and without interruption, for the full period of twenty years before this action was commenced. These principles are so nearly elementary, at least they are so perfectly well settled, that it is scarcely necessary to refer to authorities to sustain them. A few cases, however, will be cited, not so much for the purpose of proving the existence of the principles, as to illustrate their application. These authorities are taken almost at random from a multitude of others to the same effect
Rooker v. Perkins, 14 Wis., 79" court="Wis." date_filed="1861-06-18" href="https://app.midpage.ai/document/rooker-v-perkins-6598467?utm_source=webapp" opinion_id="6598467">14 Wis., 79; Cooper v. Smith, 9 Serg. & R., 26; Angell on Limitations, 385-92; Abell v. Harris, 11 Gill & Johns., 367; Brandt v. Ogden, 1 Johns, 156; Doe ex dem. Clinton v. Campbell, 10 id., 474; Postlethwaite v. Payne, 8 Ind., 104" court="Ind." date_filed="1856-11-26" href="https://app.midpage.ai/document/postlethwaite-v-payne-7033218?utm_source=webapp" opinion_id="7033218">8 Ind., 104; Sargeant v. Ballard, 9 Pick., 251; Angell on Watercourses, Title “Adverse Enjoyment,” § 210-14, and cases cited; Sydnor v. Palmer, 29 Wis.
It is entirely immaterial by what means the enjoyment of the easement was interrupted, whether by disseizin, or fraud, or any other means; if there was a substantial interruption thereof, it defeated the prescription so far as the previous user is concerned. The question is not how the user was interrupted, but whether there was a time when it was in fact substantially interrupted. San Francisco v. Fulde, 37 Cal., 349" court="Cal." date_filed="1869-07-01" href="https://app.midpage.ai/document/city-of-san-francisco-v-fulde-5436885?utm_source=webapp" opinion_id="5436885">37 Cal., 349. It is imma
It is freely conceded that a mere temporary or accidental interruption of the user, occasioned by the dryness of the weather, the washing out of the dam, the necessity for repairs, and the like, will not stop the running of the prescription, if- there be no intent to abandon the easement, and the user thereof is resumed within a reasonable time after such temporary interruption. In such cases the steps which are immediately taken to repair or rebuild the dam, or the bolding and using of all the water there is in the stream, may well be held to be equivalent to an actual and uninterrupted flowing of the land. It is so to the extent of the ability of the mill owner. It is in fact, rather to be considered as a mere fluctuation in the extent of the user produced by uncontrollable natural causes, than as an interruption of such user which breaks its continuity and thus defeats the right thereto by prescription.
Thus far we have been considering tbe subject from tbe stand-point of tbe common law. But we have a statute relating thereto which may be applicable to this case, and which must therefore be considered. Obap. 184, Laws of 1862, enacts tbat, “No action for tbe recovery of damages for tbe flowing of lands, shall be maintained in any court in tbis state, when it shall appear tbat said lands have been flowed by reason of tbe
It may be that under the decision of this court in Hanson v. Taylor, 23 Wis. 547" court="Wis." date_filed="1869-02-15" href="https://app.midpage.ai/document/hanson-v-taylor-6600126?utm_source=webapp" opinion_id="6600126">23 Wis. 547, which gives a construction to a very similar statute relating to highways, it should be held that a good prescriptive right to flow lands may be predicated of a user which is not adverse. On this point no opinion is here expressed. But however this may be, the law of 1862 does not abrogate the requirement of the common law, that the continual and uninterrupted user of the easement for the specified time is essential to a valid prescription. On the contrary the use therein of the words “ for the ten years next preceding,” etc., plainly shows an intent to leave the common law unchanged in this respect, for certainly it can not be truly said that the plaintiff’s lands were flowed “for the ten years next preceding” the commencement of this action, if during some portion of sucb ten years they were not flowed. The language quoted necessarily imports the whole of the term.
The defense in tbe answer to which tbe demurrer was interposed fails entirely to aver tbat tbe lands of tbe plaintiff bad •been flowed by tbe defendants or those under whom they claim, by means of their mill dam, for tbe ten years next preceding tbe commencement of tbis action, and hence it fails to show tbat tbe action is barred by tbe statute. Eor a like reason it also fails to show tbat tbe action is barred by tbe common law.
Tbe order overruling tbe demurrer to tbe third defense in tbe answer must be reversed and tbe cause must be remanded with directions to tbe circuit court to sustain sucb demurrer.
By the Court. — Ordered accordingly.