54 Wis. 133 | Wis. | 1882
The principal questions in this case are: Was evidence of a parol license to flow the plaintiff’s land admissible under the answer? If so, would proof of such a license defeat a claim for damages prior to the commencement of the action? On the trial, the circuit court, against plaintiff’s objection, admitted testimony offered on the part of the defendants which tended to prove that when the defendant Henry purchased the water-power and eighty acres of land of the plaintiff, the latter represented that it was a good water-power, having ten or twelve feet head, and would not flow more than twenty or twenty-five acres of the land which Henry proposed to purchase; that the land was plaintiff’s; and that the defendants would have no trouble with any one on account of flowage. It is now insisted that such evidence was not admissible xrnder the answer, because a license was not specially relied upon or pleaded therein.
Under the former system, license had to be specially pleaded in trespass, and could not be given in evidence under the general issue (1 Chit. Pl., 541); and doubtless the same rule obtains under the code. In this case, however, the answer, while it is informal, substantially sets up a license to flow the plaintiff’s land, or what amounts to a license. After seating up the sale of the water-power by the plaintiff to the defendants, and the representations made by the plaintiff as to- the height the water could be raised, it is alleged “ that after the defendant had built his mill dam and erected his grist mill, he then found that h¿ could get but nine feet head of water, and in getting that it overflowed more land than plaintiff represented it would; that the plaintiff then said that he owned all the land around said mill dam, and that it would be all right; and that the defendant aforesaid would have no trouble.”
Some exceptions were taken to the charge of the court upon the point as to the effect of a parol license. The court, in substance, charged that it was competent and legal for the plaintiff verbally to give his consent that the defendants might build their dam high enough to overflow his land, and if the jury found from the evidence that such consent was given, the plaintiff was not entitled to recover damages for any injury which was caused thereby previous to the commencement of the action. The court also instructed the jury that such parol license or consent was revocable at the.pleasure of the plaintiff,
By the Court. — The judgment of the circuit court is affirmed.