French v. Owen , 2 Wis. 250 ( 1853 )

By the Court,

Cbawfobd, J.

The first error assigned in this case, - relates to- the overruling of the motion to dismiss the proceedings in the Circuit Court. The motion possessed no merits, and the court decided correctly in overruling it. The second error ass%ned presents tlie question upon which we will dispose of the case.

On the trial in the Circuit Court, the respondent (who is plaintiff here) offered to prove by a witness, a parol license to flow the land in question, given to him before the erection of his mill and dam, and also subsequent thereto, and previous to the commencement of these proceedings. The complainant objected to the introduction of this evidence, on the ground that parol proof whs inadmissible to show a license to flow lands, and the court sustained the objection, and refused to permit this evidence to be given. The dam in question was not erected on the land of the complainant, but by means thereof, the water was “ flowed back” upon his land, which is situated above the dam on a stream or creek not navigable, known as “ French’s creek.” ,

Section 6, title 1, of an act of the Territory of Wisconsin, entitled “ An act to prevent fraudulent conveyances and contracts relative to real and personal property,” (which act^was in force at the time of the erection of this mill and dam,) provides “that no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be creatéd, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing,” &c. In view of this section of the statute, we think that any permission or license to overflow the lands of another, must be esteemed to be a power concerning and necessarily relatmg thereto, which, to be effectual and permanent, must be expressed by deed or convey anee in writing.

But although & parol license would be inadequate to vest in the respondent a permanent right to overflow the complainant’s land, it should at least be received as a defence for any alleged injury sustained in consequence of the doing of the act or acts permitted, so long as the license was not revoked.

“ It does not follow,” says Mr. Justice Oowen, in Miller vs. The Auburn and Syracuse Railroad Co., 6 Hill, 61, “by any means, that because a license is void for the purpose of carrying an interest irrevocable, it may not enure as a personal authority, and until revoked, protect-the defendant against an action for a wrong.”

In Hewling vs. Shippam, 5 Barn. & Cres. 221, Mr. Justice, Bailey, after a somewhat elaborate examination of the English cases, holds that a parol license might be an excuse for a trespass, until such license were countermanded, although it would be insufficient * to support a right and title. The same principle is maintained in Branch vs. Doane. 17 Conn. 412, and Mumford vs. Whitney, 15 Wend. 380.

We hold that & parol license to overflow the adjacent lands of the person giving such license, by means of a mill dam constructed on the lands of the person to whom the license is given, although - insufficient to vest in the latter any power over, or right to, the land overflowed, is admissible as evidence in justification of any alleged trespass or injury by such overflowing, during the continuance of the license, and while it remained unrevoked; and if so admissible in an action of trespass, we think it is equally so- in a proceeding-like the present, which by section twenty-eight of the act concerning mill dams (Session Laws of 1840,pp. 65, 69,) was given instead of an action at common law-

The object, in either form of proceeding, would be obtain compensation for an injury sustained, and a license would certainly be a good defence to such claim. The case of Seymour vs. Carter, 2 Met. 520, is analogous to the one before us.

"We believe the .Circuit Court erred in rejecting the evidence of parol license offered by the defendant, and therefore the judgment must be reversed, and the cause remanded for a new trial.