Lake v. Loysen

| Wis. | Sep 21, 1886

LyoN, J.

1. The only uncertainty (if there is any) in the complaint, in the description of plaintiff’s land, arises from the exception of the eleven acres conveyed to the railway company, which is not specifically described. But the location of that tract may readily be ascertained by reference to the conveyance thereof to the railway company. Moreover, the eleven-acre tract was conveyed for right of way and depot grounds, and presumably is being used for those purposes. A view of the premises would, no doubt, disclose the location of the tract. Id cerium est quod cerium reddi potest. The description, in the complaint, of the plaintiff’s land, would, if inserted in a deed, be sufficient to convey the land, and no good reason is perceived why the description thereof in a pleading should be required to be any more definite.

2. For similar reasons we think the description of the lands injured is sufficient. The plaintiff’s farm is described by government subdivisions; the exception of the railway lands is sufficiently expressed; and it is charged that forty-four acres on the easterly half of jdaintiff’s land are injured by the raising of the water. This informs the defendant with reasonable certainty what he is called upon to answer.

3. The claim for damages and the demand for judgment are unobjectionable. It was not necessary to state in the complaint the dimensions of the defendant’s dam, or the excess thereof above a reasonable height, or the times in the year when the same should be left open.

4. Perhaps it would have been better pleading had the complaint stated the manner in which the plaintiff’s land, not flowed or water-soaked by means of the dam, was injured; and, had the circuit court required her to make her complaint more definite and certain in that particular, probably this court, on appeal, would have affirmed the order. But the gravamen of the action is the raising of the water in the stream, and thereby overflowing or soaking the plaintiff’s land. The effect thereof upon the other lands of the plaintiff is merely an. additional element of damages, which, if eliminated from the ease, does not defeat the action. Besides, such effect is a physical fact, the character and extent of which may readily be ascertained by a view of the premises. It is unlike a naked averment, in a pleading, of a fact which is entirely an inference from other facts; such as an averment of fraud or negligence, where proof of the fraud or negligence is essential to the maintenance of the action or defense. In such a case the facts from which the inference of fraud or negligence is sought to be deduced should be pleaded, or want of knowledge thereof averred. Young v. Lynch, post, p. 514,. decided herewith, is an illustration of this rule.

We find no such uncertainty or indefiniteness in this complaint as will justify us in disturbing' the order of the circuit court. On the contrary, we think the pleading is drawn in substantial compliance with the statutory rules in that behalf, and sufficiently apprises the defendant of the nature and particulars of the plaintiff’s claim in the action.

By the Court — Order affirmed.