Boehm v. Wermuth
| Decision Date | 08 November 1927 |
| Citation | 194 Wis. 82,215 N.W. 818 |
| Parties | BOEHM v. WERMUTH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a Judgment of the Circuit Court for Juneau County; Emery W. Crosby, Judge.
Action by Frank L. Boehm against Emil Wermuth. Judgment for defendant, and plaintiff appeals. Affirmed.--[By Editorial Staff.]
Damage for diversion of water course. The complaint alleges the ownership of the premises involved in the controversy; that an ancient water course had existed which flowed by the plaintiff's premises; that the defendant unlawfully diverted the waters from said water course into another and different channel, which caused the water to flow away from the plaintiff's premises; sought to recover damages for past injuries and a mandatory injunction compelling the defendant to restore the stream to its natural course.
The answer admitted the ownership of the various premises, and denied all other allegations of the complaint.
There was a trial before the court, the court found that the cause of the diversion of the water course was not an act of the defendant, but was an act over which the defendant had no control; that there was no duty on the part of the defendant to restore the stream to its original channel; that the plaintiff had no right to go upon defendant's lands for that purpose, and dismissed the complaint. From judgment of dismissal, plaintiff appeals.Clinton G. Price, of Mauston, for appellant.
McFarlane & Loomis, of Mauston, for respondent.
[1] The findings of fact in this case are combined with a decision which makes it very difficult to separate findings from observations, conclusions, and arguments. The nature of the findings of fact and conclusions of law are indicated in Cointe v. Congregation of St. John the Baptist, 154 Wis. 405, 143 N. W. 180. It is not necessary for us to repeat here what was said in that case in respect to the value of the opinion of the trial court, nor should it be necessary to emphasize the fact that an opinion, relating to findings of fact and conclusions of law, however helpful, is not in compliance with the statute. Section 270.33, Wis. Stats. We call attention to this matter because the practice of permitting opinions to stand as findings of fact and conclusions of law seems to be increasingly prevalent. The trial judge who has a much more intimate knowledge of the facts of the case and a firmer grip on the whole situation can much more accurately and definitely determine what are...
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...court in case of conflict. Zimmerman v. Treleven, 192 Wis. 214, 212 N. W. 266;Adams v. Adams, 178 Wis. 522, 190 N. W. 359;Boehm v. Wermuth, 194 Wis. 82, 215 N. W. 818. Opinions filed by a trial court are very helpful in the consideration of questions subsequently raised in the case, and are......