25 Wis. 329 | Wis. | 1870
On the first argument of this case, it was submitted on the part of the respondents’ counsel upon a printed brief, which did not discuss one of the points made by the appellants’ counsel, probably for the reason that it was made for the first time in this court. As the point seemed to us to present some difficulty in maintaining the action, a re-argument was ordered on that alone.
The action was brought for damages for a diversion of water from a mill which the plaintiffs occupied together. The summons was not what is called one for relief, but one for a money demand arising upon contract. The complaint set forth, fully, the origin of the rights of the plaintiffs to the water which they claimed the right to use at their mill. And it appears, from its allegations, that these rights had been derived from the defendants through different separate conveyances, so that a right to an undivided half of the water claimed was vested in one of the plaintiffs through a lease and an assignment, and the right to the other undivided half was vested absolutely in the other plaintiff by grant. The language of the complaint seems aptly designed to state a cause of action for a breach of the respective covenants of the lease and the deed for quiet enjoyment. And as the summons was one upon contract, the question arose, whether the action must not be regarded necessarily as
There is nothing to show that the question was raised at all in the court below. It is true, a motion for a non-suit was made. And we at first thought that might be sufficient to authorize the defendants to take advantage of it. But the record does not disclose, what were the grounds of the motion. The fact that such a motion was made is not necessarily inconsistent with the theory that the case was tried as an action of tort. The motion may have been founded merely upon a claim' by the defendants’ counsel that the plaintiffs had failed to sustain such an action by the proof. The facts that, if the action was considered as one upon contract, the objec
The material legal question presented in the case requires the construction of the provisions in th various conveyances, by which the seven hundred square inches of water to which the plaintiffs are now entitled were originally reserved, and have since beetf conveyed. There can be no doubt that the intent and effect of those provisions were, to create a priority of right in the owners of these seven hundred square inches. The language of the deed where the reservation was first made by the original proprietors was,- that they reserved to themselves “the exclusive right to take and use seven hundred square inches of water,” etc. This word “exclusive” clearly imports that the right so reserved was to be prior and paramount to that of other parties created by that conveyance. This was clearly the construction put upon it by the parties themselves ; for, in the general agreement relating to the ■ water power, made by all the owners, they speak of their seven hundred inches as being “^referenced” to Cole & Bailey.
Much has been said in this and other cases, growing • out of this water power, about the uncertainty arising from the absence of any stipulation or provision about the “head” of water, to which the respective parties were to be entitled. But whatever difficulty, if any, that fact may create in other cases, we think that, r where it is provided that a particular owner is entitled to priority over others, that fairly and reasonably implies that he is to
And it follows, that whenever, in such case, tbe bead of water in tbe dam becomes so low, that if parties subsequent in right continue to use tbe water they will prevent such a practical beneficial use by tbe party having tbe prior right, they are then wrongfully diverting bis water, and become bable to an action for tbe damages.
Such a state of facts was shown here. We shall not allude in detail to tbe testimony ; but it shows, clearly, that tbe defendants were in tbe habit of using the water when tbe bead was so low that tbe plaintiffs could not make any practical beneficial use of their seven hundred inches. Of course, where other parties are also perpetrating a similar wrong, as is claimed here, it becomes impossible ever to apportion tbe damage with entire accuracy. But we cannot say that the evidence does not show that the defendants have themselves inflicted damage to tbe amount found by tbe court below. On tbe contrary, we think it sustains tbe finding upon that point.
Tbe allegations in tbe answer that tbe plaintiffs bad enlarged their opening so as to draw more than tbe seven hundred inches to wbicb they were entitled, do not constitute any defense. If true, and tbe defendants are prejudiced, they have their remedy. But it constitutes no reason why tbe defendants should be allowed to divert with impunity tbe amount to wMcb tbe plaintiffs are entitled.
By the Court. — Tbe judgment is affirmed, with costs.
A motion for a rehearing was denied at tbe January term, 1870.