Appleton Mfg. Co. v. Fox River Paper Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: CASSODAY
• Citation: Appleton Mfg. Co. v. Fox River Paper Co., 87 N. W. 453, 111 Wis. 465 (Wis. 1901)
• Decision Date: 15 October 1901
• Parties: APPLETON MFG. CO. v. FOX RIVER PAPER CO.

111 Wis. 465

87 N.W. 453

APPLETON MFG. CO.

v.FOX RIVER PAPER CO.

Supreme Court of Wisconsin.

Oct. 15, 1901.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by the Appleton Manufacturing Company against the Fox River Paper Company. From an order sustaining a demurrer to a counterclaim, defendant appeals. Affirmed.Humphrey Pierce, for appellant.

Lyman E. Barnes, for respondent.

CASSODAY, C. J.

This is an appeal from an order sustaining a demurrer to the counterclaim set out in the answer. The action is ejectment to recover a strip of land 12 feet wide and 406 feet long in the bed of Fox River, upon which is built the spillway and wing dam, as therein specifically described; and the complaint is in the statutory form, and alleges that the plaintiff is the owner in fee of such premises. Section 3077, Rev. St. 1898. The answer, by way of defense, alleges, in effect, that the premises are a part of a larger tract of land, described; that, on and prior to January 15, 1850, said lands were held and owned by the parties therein named, as tenants in common; that one Amos A. Lawrence, therein named, owned the undivided one-half thereof, and that Martin, Conkey, and Bowen, therein named, owned the other undivided one-half thereof; that, on the day and year mentioned, said parties, respectively, made, executed, and delivered to the other a deed of partition, therein set forth, and each of which was thereupon recorded; that the water power was appurtenant to that portion of the land set off in severalty to Lawrence, and the same, together with the rights, privileges, and easements, were expressly, and by necessary implication, granted and conveyed to Lawrence, and, through mesne conveyances, from him to the defendant; that whatever right the plaintiff has to the land described in the complaint is based upon, and derived solely from, conveyances from, by, or through Martin, Conkey, and Bowen, or those claiming under them, and were taken with full knowledge of the rights of the defendant; that, upon the execution and delivery of such partition deeds, the parties thereto gave a practical construction to such deeds, which was recognized and acknowledged by the grantors and grantees of the respective deeds; that those claiming under Lawrence successively entered into the open, notorious, actual, adverse, and exclusive possession and occupancy of the lands, rights, privileges, and easements, and especially the right of flowage granted and conveyed to Lawrence, and built and constructed dams and wing dams in the channel of the river, including that part thereof constituting the locus in quo, and that the same and the whole thereof have, for the period of 20 years and upwards immediately preceding the commencement of this action, and still are, maintained, and were and are necessary and essential for the purpose of developing and making available said water power so appurtenant to said land; that, without such dams and wing dams, including that portion of the locus in quo, the right of flowage could not be exercised or enjoyed, as provided and granted in the deed to Lawrence; that the mills, dams, and water power had, from time to time, been greatly enlarged and improved, at great expense,--all to the actual knowledge of Martin, Conkey, and Bowen, and those claiming under them, including the plaintiff; and that the plaintiff's right of action was barred by the 20-year statute of limitation, and also by the 10-year statute of limitation, founding such claim upon written instruments. The defendant also answered, by way of counterclaim, and alleges, in effect, such partition; that such water power was appurtenant to the land so conveyed to Lawrence; that the defendant succeeds to such rights through mesne conveyances from Lawrence, and that the plaintiff claims solely by mesne conveyances from Martin, Conkey, and Bowen, and their several grantees, who took the same with full knowledge of the rights of the defendant; that such practical construction was given, and such exclusive possession so taken and such improvements made, as already stated; that the plaintiff's right of action was barred by such 20-year statute of limitation and such 10-year statute of limitation. The counterclaim also alleges that, by the building, constructing, maintaining, enlarging,...