62 Wis. 396 | Wis. | 1885
The main facts are that in 1865 the Fox and Wisconsin Improvement Company constructed a dam across the Fox river at Governor’s bend, in the town of Fort Winnebago, county of Columbia, for the use of the improvement of the Fox and Wisconsin rivers, etc., which caused the waters of said river to overflow and otherwise injure the lands in question. The plaintiff first became the owner of said lands in 1867, by deeds from one Lawrence Sweaney, who
The learned judge of the circuit court ruled upon the trial, in effect, that the plaintiff could not recover for any flowing or damages caused by the dam built in 1865, on the ground that the then owner was entitled to such damages and- compensation, and allowed the plaintiff to have a verdict and to take judgment for nominal damages for such increased flow-age, and so ordered.
This presents the only question in the case,— whether the plaintiff can recover damages and compensation for the flow-ingof said lands, caused by the erection of said dam in 1865, two years before he became the owner thereof. The question was decided in analogy to the condemnation of lands for railways, and the assessment of damages and compensation therefor, and by the authority of Pomeroy v. C. & M. R. R. Co. 25 Wis. 641, and other similar cases in this court. If the proceedings of the land-owner in such a case as this are in analogy to the proceedings to obtain such damages for flowing lands by means of a mill-dam, then the rule would be that the present owner could recover only for dam-¿ges so caused since he became such owner. Pick v. Rubicon Hydraulic Co. 27 Wis. 433. If in'analogy to proceedings of condemnation and assessment of compensation for a railroad, then the whole damages and compensation belong to the owner of the lands when they are actually taken for such purpose. It is unnecessary to review or disturb the decisions which so hold, for this case is outside and independent of both such rules. From the time of constructing this dam to 1875 there was no provision of law for the ascertainment and payment of the damages and compensation for the .taking of these lands, by flowage or otherwise, for the use of
If under that act the United States, or the owner of such lands, had proceeded to have such damages and compensation ascertained “ in the same manner ” as the railroad companies, or the owners of land taken for railroad purposes, were authorized to proceed, then there would be great force in the position taken by the learned judge before whom this case was tried, that the rule established in the Pomeroy Oase and other railroad cases in this court, that the damages and compensation belonged to the owner of the lands when so taken, and not to a subsequent purchaser thereof, ought to prevail in this case. And yet there might be some doubt of this occasioned by the language in the past tense, as to lands which have been already overflowed or so taken. The present owner of such lands is given the right to so proceed irrespective of his ownership when the dam was built and the lands were first overflowed thereby. However this may be, the Congress of the United States, in 1875, passed their own act upon this subject, and for the first time assumed the liability to pay damages and compensation for lands over
Enough has been said to show that the present case is -ruled by that case in respect to the very question here involved. When the United States became the owner of the improvement, Congress found that many dams had long been constructed which caused the lands of private persons to be overflowed and damaged, and that there had been no provision of law for the ascertainment and payment of damages and compensation. Such lands had been long since taken b}7 and appropriated to the use of the government for such improvement, and no compensation had been made, and Congress made by the above act provision for ascertaining the same, irrespective of the past or present ownership of the lands. The case of Jones v. U. S., supra, was, .and the present case is, under that act of Congress. It is not necessary to repeat that decision, for it is readily understood, and should have had application in the trial of this case.
What should be the rule of damages or compensation in such a case we do not determine, and the question was not
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.