37 Wis. 118 | Wis. | 1875
It is claimed on behalf of the plaintiff, that sec. 12 of the “ mill-dam act” (R. S., ch. 56) gives the plaintiff a right to a trial de, novo at the bar of this court, or at least that it makes it our duty to review the' evidence contained in the bill of exceptions, and to determine its weight and effect, in the same manner and to the same extent as in equity causes and in actions tried by the circuit court without a jury, brought to this court by appeal. That section is as follows: ‘ “ Either party may appeal to the supreme court from the judgment of the circuit court, and the- cause shall be there heard and determined as it ought to have been in the circuit court, except that if the judgment of the supreme court in such case shall be in favor of the complainant, the case shall be remanded to the circuit court, who shall proceed therein in like manner as if such judgment had been rendered in that court.”
The question as to whether the lands of the plaintiff were injured by the dam was litigated on the trial, as was also the amount of damages. On the argument it was claimed that this was done in violation of secs. 8 and 11 of the same act, which are as follows: “ Sec. 8. The respondent may in his answer deny that the complainant has any interest in the land alleged to be flowed or injured, or allege that the respondent has a right to maintain his dam for an agreed price, or without any compensation, or any other matter which may show that the complainant cannot maintain the action, but he shall not in his answer deny that
With some slight changes of phraseology, not affecting this case, our mill-dam act is a transcript of the Massachusetts statute on the same subject. R. S. of Mass, of 1836, ch. 116. It will be seen, on comparison of the two statutes, that two sections found in the latter, relating to the summoning of a sheriff’s jury to assess damages, and the practice before such jury, are omitted from our statute.
When the mill-dam law of this state was first enacted (Laws of 1840, no. 48, p. 65), the practice in Massachusetts under ch. 116, supra, was briefly as follows: The issues made by the pleadings were first tried in the court of common pleas, like other issues of fact, but the question whether the lands of the complainant were injured by the dam of the respondent could not then be tried, for that issue was excluded from the pleadings by sec. 8 of the act. From the judgment of the common pleas an appeal could be taken to the supreme court, and, on appeal, a jury was called in the appellate court, and the issue was there tried de novo. If the judgment of the supreme court was for the complainant, the cause was remanded to the common pleas, and, without further pleadings, the latter court thereupon issued a warrant to the sheriff or other proper officer, requiring him to summon a jury to hear and determine the matter of the complaint. The same practice prevailed where the judgment of the common pleas was for the complainant, and no appeal taken therefrom. The functions of the sheriff’s jury were, to determine whether the lands of the complainant were injured by the respondent’s dam; and, if so, to assess past damages therefor ; to regulate the height to which the water might be raised,
During the argument of this appeal, the court (after consultation) stated to counsel that, inasmuch as the laws of this state provide no methods or processes for calling a jury in this court for a retrial of the issues, it is impossible to follow the practice established in Massachusetts, and hence that the case must necessarily be governed by the general statute of appeals. Subsequent examination has confirmed us in the opinion that the view then taken is correct. Indeed, sec. 2, art. YII of the constitution, expressly ordains that “ in no case removed to the supreme court shall a trial by jury be allowed.”
It is very evident that, in the endeavor to adopt the principle of the Massachusetts statute, its form was too closely followed by the legislature, and that sufficient care was not taken to adapt the statute to our judicial system. Hence it is that we find in the statute a provision* which, were any lawful means to that end at our command, would probably require us to call a jury and try the case de novo in this coui't. The impossibility of doing so under any laws ever in force in this state is doubtless the reason why the courts and bar of the state have, from the first, wholly disregarded the provisions of sec. 12 under consideration. All of the cases brought under the mill-dam act which have been determined by this court, from Newcomb v. Smith (2 Pin., 131,1 Chand., 71), down to the present time, have been determined on exceptions, precisely as all other legal actions brought here by appeal or writ of error have been and are determined. Indeed Newcomb v. Smith, and other early cases of the same kind, were brought to this court by writs of error, and no objection to that method appears to have been made. See
Such an action is a substitute for the common law action on the case to recover damages for the injury to the lands flowed,- and, in proper cases, to obtain an abatement of the dam which causes the injury; and it has the essential elements of a common law action. From what has been said, it is quite apparent that the legislature did not intend by sec. 12 of the act to place the action on the footing of a suit in equity, in respect to the power of this court to review the evidence. If any legislative intent can be imputed, it is that the action, on appeal, should be tried de novo. We must hold, therefore, that the rules which govern in common law actions must- control in cases under the mill-dam act brought here by appeal, and hence, that this judgment cannot be reversed merely because we may think the weight of evidence is against the verdict.
In the present case there is testimony tending to prove the prescriptive right alleged in the answer, and also that the lands of the plaintiff are not injured by the dam. It will serve no useful purpose to set out such testimony at length. These facts and the views above expressed dispose of the objection that the verdict is against the weight of evidence.
But it is claimed that there was a mistrial of the action, because the questions whether the lands of the plaintiff were injured by the dam, and of damages, were submitted to the same jury to which the other issues in the action were submitted. The practice which prevails in Massachusetts, of trying those questions before a sheriff’s jury, has never prevailed in this state, but the statute which is supposed to prescribe that practice has been, we believe, entirely disregarded in this state
But we do not find it necessary to determine the question on this appeal, and do not think it advisable to do so. It is true, the answer denies that the plaintiff’s land was injured by the dam, which is clearly a violation of the provisions of sec. 8 ; and that issue, and all of the issues in the case, were litigated before, and submitted to, the same jury, contrary to the Massachusetts practice. It is also true that the verdict may have been based entirely upon a finding that the land was not so injured. The fact remains, however, that all the proceedings were had without objection on behalf of the plaintiff, either to the answer or proofs, or to the charge of the court submitting
The foregoing remarks dispose of the case; for it is well settled that if there has not been a mistrial, if the pleadings are sufficient, or may be made so by authorized amendment, if there is some testimony to support the verdict, and no exceptions were taken on the trial, the judgment on the verdict will not be reversed because the court refused a new trial, nor will the order refusing a new trial, if the appeal be from such order, be reversed under such circumstances. Laville v. Lucas, 18 Wis., 617; Paine v. Roberts, 29 id., 642. See also Van Doran v. Armstrong, 28 id., 236.
Finding all those conditions of a valid judgment in the record before us, we must affirm the judgment of the circuit court.
By the Court. —Judgment affirmed.