39 Wis. 384 | Wis. | 1876
On tbe argument, all exceptions to tbe rulings of tbe court on tbe trial were abandoned except those taken to some portions of tbe charge. Exceptions were taken to the charge relating to tbe defense of tbe statute of limitations. Upon that point tbe court, among other things, instructed tbe jury that if tbe plaintiff’s lands or some portion of them ■were flowed by reason of tbe dam for ten years next before tbe commencement of tbe action, to tbe same degree and uniform height that they were at tbe commencement of tbe action, and since, then tbe verdict must be for tbe defendants.
Tbe criticism upon this charge is; that if tbe plaintiff bad only ten acres flowed at tbe time tbe suit was brought, but bad bad forty acres flowed three years before that time, under this rule of tbe court tbe ten years flowing of tbe ten acres would bar a recovery for tbe injury to tbe forty acres flowed three years before tbe action was commenced, and subsequently, though tbe forty acres might not have been actually flowed for tbe full period required by tbe statute of limitations. Tbe whole charge must be construed together and with reference to tbe issues and evidence in tbe cause. Under such a rule of interpretation, tbe charge seems to be sufficiently accurate and precise. Tbe complaint was for tbe flowing and injury done to ninety-three acres of land, or some part thereof, belonging to tbe plaintiff. An effort was made on tbe trial by tbe plaintiff to prove that more of bis land was flowed in tbe years 1873 and 1874 than bad been
By the Ootvrt. — The judgment of the circuit court is affirmed.