Murray v. Scribner

70 Wis. 228 | Wis. | 1887

Cassoday, J.

A mere interlocutory order for judgment is not app'ealable. Webster-Clover L. & M. Co. v. St. Croix Co. 63 Wis. 647; Hoey v. Pierron, 67 Wis. 267; Bourgeois v. Schrage, 69 Wis. 316; Goldmark v. Rosenfeld, 69 Wis. 469; and the cases referred to in the opinions cited. On the contra^, an appeal to this court by a party aggrieved, from an order, can only be from such an order as is defined in sec. 3069, R. S., as being appealable. Sec. 3048, R. S.; 63 Wis. 650. Among the orders thus made appealable is “an order affecting a substantial right, made in any action, when such order, in effect, determines the action and prevents a judgment from which an appeal might be taken.” Subd. 1, sec. 3069. Here the order does not “determine the action,” much less “prevent” such judgment. On the contrary, it orders a judgment which will determine the action and from which an appeal may be taken. No judgment has as yet been entered. The mere fact that the order for judgment includes an order denying the defendant’s motion for judgment, does not make the order appealable, since every order for judgment wholly in favor of one party necessarily precludes any judgment in favor of the other-party. In other words, the two orders mentioned are together, in effect, but one order for judgment in favor of the plaintiff and against the defendant. Such orders, therefore, were not appealable, and hence so much of the appeal as relates to them is dismissed.

2. But the order refusing to set aside the verdict and grant a new trial is appealable. Subd. 3, sec. 3069, R. S. Upon this appeal from that order we are only at liberty to consider whether the several findings of the jury are so in: consistent.and contradictory as not to authorize a judgment thereon in favor of the plaintiff. The past damages found were such as accrued after July 1, 1879. It is claimed that if such damages were the extent of the injury for the period mentioned in the verdict, then the prospective damages found by the jury, as stated, both annually and in gross, were excessive. But with no bill of exceptions of record we are unable to reach any such conclusion. Besides, to say that past annual damages is a certain criterion of the amount of prospective annual damages, would obviate the necessity of any trial or verdict as to the latter class of damages. The statute, however, contemplates separate findings as to each class of damages. Sec. 3381, R. S. This seems to indicate that each class of damages rests upon its own basis.

It is ^claimed that the tenth, thirteenth to the sixteenth, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, and twenty-eighth findings, above stated, in effect establish the defendant’s claim of ten years’ adverse user under a claim of right next preceding the commencement of this action; and that the twenty-ninth finding mentioned is in direct conflict with such other findings, and to the effect that there was no such continuous adverse user or flo wage under such claim of right for that period. This claim is based upon the assumption that it appears from such other findings that such flo wage of the plaintiff’s land had been continuous and uninterrupted for the ten years mentioned. But such assumption is, as we think, unauthorized from such findings. It nowhere appears in the record that there was any such ten years’ continuous and uninterrupted adverse user or flo wage under such claim of right during that period. We are not at liberty to infer that the mere maintenance of the dam, and the water in the pond, at the same height for the period mentioned, necessarily caused the plaintiff’s land to be flowed during the whole of that period to the same extent that it was flowed subsequently to July 1, 1879. To do so would be to commit the same error for which the judgment in Smith v. Russ, 17 Wis. 227, 84 Am. Dec. 739, was reversed. It is the flo wage of the land which sets the statute of limitations running. Subd. 3, sec. 4221, R. S.; Johnson v. Boorman, 63 Wis. 273. To be available as a defense, it “ must be continued, uninterrupted, and adverse, for the length of time prescribed by the statute.” Haag v. Delorme, 30 Wis. 594; Sabine v. Johnson, 35 Wis. 203; Scheiber v. Held, 47 Wis. 350. The extent of the right thus acquired b}T adverse user is not determinable merely from the height of the dam and the head of water at the dam, but is only commensurate with such actual flo wage. Mertz v. Dorney, 25 Pa. St. 519; Carlisle v. Cooper, 21 N. J. Eq. 594; Gilford v. Lake Co. 52 N. H. 265; Powell v. Lash, 64 R. C. 458. Especially should such be the rule where, as here, the land alleged to have been flowed is situated some miles above the dam. Here there is an absence of any finding that the land was flowed at all prior to 1876; and hence there is no finding of any such ad verse user as required by the statute. Certainly, in the absence of any bill of exceptions, we cannot say that there is any such inconsistency or contradiction in the findings as requires that the verdict should be set aside.

By the Court.— The order of the circuit court refusing to set aside the verdict and grant a new trial is affirmed.