Rooker v. Perkins

14 Wis. 79 | Wis. | 1861

By the Court,

DIXON, C. J.

We see no error for which the judgment in this case should be reversed. The appellant’s offer to show that the water in the dam infects the atmosphere in the neighborhood of his residence with noxious vapors and produces sickness in his family, for the purpose of proving that the dam is raised too high, was properly rejected. It is obviously the policy and object of the statute, to give the owner whose land has Actually been overflowed or otherwise directly injured by the raising of the water, compensation for such injuries to the land. The fourth section declares that “ any person whose land is overflowed or otherwise injured by such dam, may obtain compensation therefor, upon his complaint before the circuit court for the county where the land or any part thereof lies.” This section undoubtedly provides -a remedy for all injuries to the land itself, whether directly, by overflowing it, or indirectly, by rendering it less productive and useful to the owner. But it goes no further. It clearly does not include damages sustained by the corruption of the air, which has n0 connec^on with and does n°f a£fect the fertility and pro-duetiveness of tbe soil. It is to the “ person whose land is overflowed or otherwise injured ” that the remedy is given. case supposed by Chief Justice Shaw, in Eames vs. New England Worsted Company, 11 Metcalf, 570, which was an action brought under a similar statute, sufficiently exposes the fallacy of the position of the appellant’s counsel on this question. In addition to the damage done to the complainant’s land by the action of the water, either by flowing over it and destroying the grass and other producid- or by being absorbed into and percolating through it under the surface, so as to render it less productive, the complainant: offered evidence to prove that the flowed land, when the' water was drawn off, emitted noxious and offensive smells,; and thus occasioned damage to the lands of the complainant other than those flowed or rendered unproductive, but contiguous thereto. The court held that this evidence could not be received, and the Chief Justice, in argument, says: “ One mode of testing this is to suppose a case where the meadows and the adjacent upland affected by offensive smells, instead of belonging to the same proprietor, are held by different owners. Close No. 1 belongs to A, and No. 2 to B. The former is meadow, and flowed; the latter is upland, so elevated and so distant that it is not reached, directly or indirectly, by water, but in consequence of its vicinity to the flowed land, it is affected by offensive smells and is thereby rendered less desirable for building lots. It appears to us clear that B could have no remedy under the mill act. And we think that the result cannot be different where both parcels of land belong to the same proprietor ?” It is very evident that evidence of such damages cannot be received for any purpose in an action under the statute. If the erection and continuance of the dam be a private nuisance, the remedy is by action at the common law and not under the statute.

That á grant will be presumed, by analogy to the statute of limitations, after twenty years peaceable and interrupted adverse enjoyment, is too well settled to admit of controversy. The instructions were, in this respect, correct. And as tbe jury must bave found under them, either that the appellant’s land was not flowed or injured by means of dam, or that the dam had been maintained at the same height for the period of twenty years next before the commence-*/O ment of the action, the consideration of the other exceptions becomes unnecessary. The appellant, having no cause of action, could not have been injured by any rule of damages, however erroneous it may have been.

Judgment affirmed.