17 Wis. 416 | Wis. | 1863
By the Court,
This action was brought as a common law action, to recover damages for flowing the plaintiff’s land, caused by the erection of a dam on Rock River in Dodge county. The complaint avers that the river at that point was navigable in fact, and was meandered and returned as navigable by the surveyors of the United States. The answer denied that the river was there navigable in fact; and on the trial the defendant offered evidence to show that it was not, which was rejected.
This question was supposed to be material in order to determine whether the general mill dam law was applicable to this dam. That law, by its terms, applies only to streams “not navigable.” And it is assumed by the defendant that if he could show that the stream was not navigable in fact at the point where his dam was, then the mill dam law would be applicable, and the plaintiff would be obliged to seek his remedy under that law, and could not maintain this action.. But if this were the only reason for holding the mill dam law-applicable, we should be of opinion that the court below prop, erly rejected the evidence offered. In 1839, Rock River was-declared to be a public highway to a point above the one in question. Sess. Laws of 1839, p. 99, sec. 4. This is plainly equivalent to declaring it a navigable stream. And by repeated acts of legislation it has since been recognized as such.. When the legislature, therefore, in the mill dam law, used the ■ words “not navigable,” they used them not in the common law.
But although that law was not applicable for the reason that the stream was not navigable, it was for another reason, which is, that it was expressly made so by the special act authorizing the erection of this dam. Laws of 1845, p. 99. It is there provided that this dam “shall be subject to all the provisions of an act of the legislative assembly of the territory of Wisconsin, approved January 13, 1840,” which was the previously existing mill dam law. This incorporates the provisions of that law, including those relating to the remedies of owners whose lands might be flowed, into the special act, and makes them applicable to this dam. It follows that the issue attempted to be made in respect to the navigability in fact of the stream, was wholly immaterial. Even though navigable in fact, the legislature had expressly extended to this particular dam the provisions of the general law, otherwise applica
The effect of this special provision does not appear to have been suggested to the court below, and as that court properly enough rejected the* evidence as to the navigability of the stream, we have had some doubt whether the judgment ought to be reversed here, upon a question that was not decided there. But this act, 'though special, is nevertheless public. It regulates the rights of individuals and of the public in what the legislature has declared a public highway. Its subject matter therefore makes it such an act as the courts are bound to take notice of. This being so, it appeared on the face of the complaint that, as a matter of law, the plaintiff could not maintain this action. This would have been good ground for arresting the judgment, although the objection had not been previously taken in the court below. And whatever is good ground for arresting the judgment,-is good for reversing it. 1 Chitty, 197; Hazen vs. Essex Company, 12 Cush., 475.
The judgment must be reversed, with costs.