Sherwood v. Vliet

20 Wis. 441 | Wis. | 1866

Downer, J.

In 1846 and 1847, the appellant and one Hart, whose interest the appellant has since acquired, built the mills and dam particularly described in the complaint; and soon thereafter excavated the race extending from the flouring mill about three-fourths of a mile in length. The last fifty or sixty rods of the race is over the land of the respondent, which, when the race was constructed, belonged to the United States, and subsequently to the state of Wisconsin. It was purchased of the state in 1850, or since. The dam is across the outlet of Green Lake. The race, about fifty yards above where its waters unite with the outlet, crosses it, the race being excavated below the natural bed of the outlet. Just below this crossing, the respondent, on his own land, obstructed or filled up in part the race so as to prevent the water in the race flowing across his land. This action was brought to enjoin the respondent from thus interfering with the flow of the water in the race. It is alleged that the obstruction in the race causes the water to set back, both in the race and outlet, so as to injure materially the mills of the plaintiff. The evidence, we think, sustains the allegation.

Has the plaintiff the right to maintain the race through the land of the defendant ? He was a trespasser in constructing it there. The mill-dam act makes no provision for such construction, or for damages in such a case. There is no presumption. of any grant, for twenty years bad not elapsed wben tbe suit was commenced, or wben tbe race was obstructed, since tbe title passed from tbe state, or since tbe construction of tbe race. Tbe plaintiff claims tbat tbe defendant, and those under wbom tbe defendant claims, bave acquiesced in bis maintaining tbe race for so long a time as to give bim a permanent right to maintain it across tbe defendant’s land. We know of no well established principle of law to tbat effect. Tbe right of tbe plaintiff should be clear and certain to authorize tbe court to interfere by injunction in bis favor. East India Co. v. Sandys, 1 Ver., 127; Anon., 1 Ver., 120; Gardner v. Village of Newburgh, 2 Johns. Ch., 164. So far from having such clear and certain right, tbe plaintiff has not even a color of title, or any right whatever. His acts in constructing and maintaining tbe race across tbe defendant’s land are but a continued trespass.

By the Court. — Tbe judgment of tbe circuit court is affirmed.