French v. Owen , 5 Wis. 112 ( 1856 )

By the Court,

Smith, J.

This was a proceeding under the territorial act of 1840, in relation to mills and mill dams, approved January 13th, 1840, and which was repealed by the state legislature, January 1st, 1850. .

On the 26th day of December, 1851, Hains F. Owen, the defendant in error, filed in the office of the Circuit Court of Columbia county, against John M. French, the plaintiff in error, a complaint, in conformity with the provisions of the act of 1840, to recover damages occasioned by the flowing of the complainant’s lands by means of the erection of a mill dam by the defendant below.

To this complaint the defendant pleaded the general issue, also accord and satisfaction, and also a license from the complainant.

At tbe March term, 1855, the case came on for trial, and after the complainant had concluded his evidence, the counsel for the defendant moved the court to nonsuit the plaintiff, on the ground that the statute of 1840, under which this writ is brought, had been repealed, and that, therefore, the court had no jurisdiction of the complaint. This motion was overruled by the court, and the trial proceeded, and the jury returned the following verdict: “ That the said defendant is guilty of the premises above laid to his charge, in manner and form as the said complainant hath complained against him, and they assess the damages by reason of the premises, for overflowing the land above described of the said complainants, for the last six years, at forty-eight dollars, and for overflowing the said lands of the said complainant in future, at the rate of ten dollars and fifty cents a year, or the gross sum of one hundred and fifty dollars, at the election of the complainant, over and above his costs and charged by him, &c.”

Upon this verdict, in the terms therein expressed, judgment was rendered, to reverse which this writ of error is sued out.

There can be no doubt that this suit or proceeding was instituted, and prosecuted to its final determination, under the provisions of the act of the territorial legislature of 1840, in relation to mills and mill dams, under the supposition that that law remained in force, in respect to mill dams erected prior to its repeal. The question here presented was ably argued, and thoroughly considered in the case of Pratt and wife vs. Brown (3 Wis. 603), in which it was held, that the act of 1840 was repealed by the Bevised Statutes of 1850, and that the parties were thereby restored to their common law rights and remedies. It was held in that case, that the repealing statute did not preserve the remedies provided by the act of 1840. We see no reason to alter or modify the conclusions to which we then arrived. It is clear that the remedy here sought to be enforced, is the statutory remedy of 1840, and cannot be sustained.

It was, indeed, said on the argument, that the complaint contained all the essential averments of a common law declaration 3n trespass, wanting only in form, and that the plea of the general issue was in due form, and sufficient to sustain the judgment. Whether this be so or not, it is obvious that the verdict is one on which no court of common law could render a judgment in a common law action. It is sufficient to refer to the case of Pratt and wife vs. Brown, and the authorities there cited, to relieve us from any further remarks.

Judgment of the court below is reversed, and the cause remanded for further proceedings, according to law.