Faville v. Greene , 12 Wis. 11 ( 1860 )

By the Court, Cole, J.

This was an action commenced under chapter 56, R. S., for damages sustained by the flowing of the lands of the respondent. The appellant demurred to the complaint, assigning several grounds of demurrer, which we do not deem it necessary to notice in detail. It appears to us that all the serious objections taken to the complaint, are substantially embraced in the position, that it is not alleged that the respondent was the owner of the land overflowed when the dam was erected, or that no compensation has been made for the injury caused by the flowing. An examination of the complaint clearly shows that it sets forth a good cause of action. It avers, in substance, that the respondent is now, and ever since the- 4th day of June, 1855, has been the owner in fee, and actually possessed of certain lands therein described; that ever since that day, and until the present time, he has-had the right to the use and profits thereof; that the appellant now, and for more than three years past, has kept up and maintained the dam which has caused the waters to flow back on the lands mentioned in the complaint, whereby he has been deprived of the use of said lands, and the same have become valueless, See. He demands judgment, that the damages he has already sustained in the premises be assessed under the provisions of the statute, and also for compensation for all damages which may hereafter be occasioned to the premises forever, in consequence of such flowage.

We do not suppose that it is essential to a complaint of this kind, to negative every possible defense which may exist to the action, and therefore, it was not necessary for the respondent to allege that no compensation had been made for the injury sustaihed. If compensation had been made, it was a proper matter of defense, and would properly be set up in an answer to the complaint.

Again, it is insisted tbattbe complaint is defective because it does not allege that the respondent was the owner of land when the dam was erected. It is said, in support of this objection, that the flowing of land by the erection of a mill dam, is taking private property for public use; that the taking is complete when the land is first flowed, and that the rights of the then owner to so much land as is flowed, are thereby divested, and in lieu of the estate taken, he has a claim against the mill dam owner for compensation in the nature of a claim for purchase money; and therefore, unless the respondent was the owner of the land when it was first overflowed, it is contended that he has sustained no injury, has had no property taken from him, and is entitled to no compensation.

It does not become necessary to determine, in this case, the question as to whether the owner of land at the time it is flowed, can alone maintain aji action, not only for damages already sustained, but also for damages which may subsequently accrue, after its alienation, by reason of keeping up the dam. It is very obvious that the statute has in view two objects: to give a remedy for damages already sustained, and an estimate of the damages, gross or annual, which may afterwards be incurred. In the case of Walker vs. The Oxford Woolen Manufacturing Co., 10 Met,, 203, it was held, that if an owner of land that is flowed by a mill dam, sells and conveys the land before he has proceeded against the mill owner for damages, he may afterwards maintain an action under the statute, and have a jury to assess the damages caused by the flowing of thelsmá whilsthe owned it. And in Charles et al. vs. The Monson & Brimfield Manufacturing Co., 17 Pick., 70, it was held, that the former owner of a mill is liable for damages occasioned by flowing land while he was the owner of the mill, although at the time when the complaint was filed he had ceased to be the owner and occupant thereof. But in neither of the above cases did it become necessary to decide the precise question discussed upon this demurrer, namely, whether a grantee of land flowed, could maintain an action for damages sustained by him after he purchased the estate. See Hathorn vs. Stinson et al., 1 Fair-field R. (Me.,) 224; Preble vs. Reed, 5 Shep., 169. If, bow-tbe proposition insisted upon by tbe counsel for tbe appellant be sound, tbat tbe owner of tbe land at tbe time it is flowed, can alone recover for past and future damages, and tbat bis grantee takes tbe property subject to tbe easement, then it is very evident tbat sucb grantee bas no right to tbe profits and use of tbe land overflowed. Here tbe respondent alleges, not only tbat be is tbe owner in fee, and actually possessed of tbe land, but further, tbat be is entitled to tbe use and profits of tbe same. By tbe demurrer it is admitted tbat this allegation is true, wbicb wholly negatives and rebuts tbe presumption, tbat tbe respondent took tbe lands overflowed subject to any easement whatever. If it be true tbat tbe taking is complete when tbe land is first overflowed, and tbat tbe rights of tbe then owner to so much land as is overflowed, are thereby divested, then it is very clear, in view of tbe allegations of tbe complaint, that the respondent must have been tbe owner of the land when tbe dam was erected. But as tbe question as to whether a subsequent purchaser can maintain an action under tbe statute for damages sustained by him for keeping up a dam after be became possessed of the land overflowed, even though tbe dam was erected before be purchased tbe properly, is not fairly raised by this demurrer, it will not be decided, or further noticed.

We are of tbe opinion tbat tbe complaint set forth a good cause of action, and tbat tbe demurrer was properly overruled.

Tbe order overruling tbe demurrer is affirmed.