Ruehl v. Voight

28 Wis. 153 | Wis. | 1871

Cole, J.

It appears to us that little more need be said in this case than to cite tbe statute of 1862, chap. 184. That statute declares that no action for tbe flowing of lands shall be maintained in any court in this state, when it shall appear that said lands have been flowed by reason of tbe construction or erection of any mill dam for tbe ten years next preceding tbe commencement of such action. This is obviously a statute of limitations applicable to this class of actions. It is suggested on tbe brief of tbe counsel for tbe plaintiff, that this statute is not applicable to dams built under tbe mill dam law of 1840, or under special charters like tbe case before us. "We are unable to concur in this view. Tbe language of tbe statute is clear, precise and comprehensive, and bars every action where tbe lands have been flowed for ten years without any claim for damages. Tbe statute means this, or it has no meaning whatever. True, in this case it appears that tbe dam was erected under a special charter of tbe legislature; and it is said that this charter was in tbe nature of a contract binding upon tbe land owner and tbe owner of tbe darn. For tbe purposes of tbe argument we will assume that this is a correct view of tbe charter; and bow does it help tbe case ? It must, we think, be admitted that tbe legislature has tbe power to restrict tbe right to bring suits upon contracts express or implied. It has exercised this power in other cases, and tbe validity of limitation statutes cannot be questioned.

Of course, tbe legislature cannot pass an act by which a past right of action shall be barred, without any allowance of time for bringing tbe suit. It must afford a reasonable opportunity to bring tbe action before tbe bar will apply. With this qualification, tbe legislature may restrict tbe time for bringing actions on contracts as it may think proper. It has certainly, in chap. 184, limited tbe right of action for damages caused by tbe flow-age of lands to ten years after tbe right of action accrues.

Tbe third defense in tbe answer alleges, in substance, that tbe lands of tbe plaintiff have been flowed by tbe dam for more than ten years next preceding tbe commencement of tbe action, as much and to as great an extent as when tbe suit was instituted ; and that this right of flowage of tbe plaintiff’s lands has been enjoyed by tbe defendants, and these persons under whom tbey claim title to tbe dam, for more than ten years, adversely to tbe right of tbe plaintiff. Such_a fiowage for that period, free from any claim for damages on tbe part of tbe plaintiff, bars tbe action. Rooker v. Perkins, 14 Wis., 79. I have examined tbe case of Tinkham v. Arnold, 3 Maine, 120, to which we were referred for a correct exposition of tbe law on tbe question before us; but that decision is manifestly inapplicable, even if it stood an unquestioned authority, as it certainly does not. See Williams v. Nelson, 23 Pick., 141. It does not appear that tbey bad in Maine, when Tinkham v. Arnold was decided, a statute like chap. 184, which bars an action for damages for the flowing of lands after ten years from tbe time tbe cause of action accrued.

Tbe demurrer to tbe third defense set forth in tbe answer should have been overruled.

By the Court. —Tbe order of tbe circuit court is reversed, and tbe cause remanded for further proceedings according to law.