Case v. Hoffman

Decision Date23 June 1898
Citation75 N.W. 945,100 Wis. 314
PartiesCASE v. HOFFMAN ET AL.
CourtWisconsin Supreme Court
OPINION TEXT STARTS HERE

On rehearing. Reversed and remanded.

For former opinions, see 72 N. W. 390 and 74 N. W. 220.

Winslow and Pinney, JJ., dissenting.

A. R. Bushnell and F. W. Hall, for appellants.

G. E. Roe, Robert M. La Follette, and J. G. Flanders, for respondent.

BARDEEN, J.

The facts upon which this litigation is founded are sufficiently stated in the opinions heretofore written in this case. This case made its first appearance in this court in 1893, on an appeal from an order sustaining a demurrer to the complaint, and is reported in 84 Wis. 438, 54 N. W. 793. The decision in the court below was made by the late Justice NEWMAN, who was then presiding at the circuit. The order of the circuit court was reversed, and the cause remanded for further proceedings according to law. Issue was joined by proper answers, testimony was taken, and findings and judgment were entered for plaintiff. From this judgment, part of the defendants, feeling aggrieved, took this appeal. The case was argued at the January term for 1897, and on September 28th of that year a decision was announced, by a divided court (Justice NEWMAN casting the deciding vote and writing the opinion), reversing the judgment of the court below. 72 N. W. 390. A timely motion for a rehearing was made, and subsequently a motion to vacate the judgment so entered was submitted, the grounds of which sufficiently appear in the opinion of Mr. Justice WINSLOW, reported herewith. The former judgment was vacated, and a reargument of the case ordered. 74 N. W. 220. Additional briefs have been submitted, and the court has again been favored with a restatement of the claims of the respective parties from able counsel. The case now comes for final determination upon the merits. The plaintiff insists that a judgment of affirmance should be entered, because when the case was first heard the justices who were qualified to hear it were equally divided as to the merits of the case, and a judgment of affirmance, under the rule, should have been entered. It is needless to say that such judgment was not entered. The judgment that was entered was void. It stood, however, as the judgment of the court until it was vacated, which was at a subsequent term; and when so vacated this court had the power either to enter judgment, or to order a reargument. It saw fit to do the latter, and the case stands precisely as if no judgment had in fact been entered,--to be determined according to the light afforded the court by the new argument, and the additional opportunity for reflection and consideration of the matters involved.

At the outset one thing must be noted, and that is, so far as applicable to the facts established on the trial, the decision first rendered upon the demurrer must be considered the law of this case. Whether good law or bad law, it is, and must remain, the law by which this court must be guided in all its future action in this case. We shall not indulge in any hair-splitting refinements, or in any effort to discover a double interpretation to be given the former decision. The issue raised by the demurrer, giving the language of the complaint its usual and ordinary interpretation, was whether it described a water course to and over plaintiff's land. The facts were set out in detail, and the court considered them in the light most favorable to the defendants' present contention. Upon such consideration it was then decided that a water course was described, “although it showed that the stream spread over wide reaches of marsh and swamp lands, and percolated the soil in many and most places” between its source and the place where it was again collected into a well-defined stream. Whether this determination is supported by authority, or whether it is “absurd or inconsequential,” it is not our present purpose to inquire. It is the law of this case, in plain and unmistakable language, and by which we must be governed.

By reference to the findings of the trial court, we find that he has followed with great fidelity the facts set out in the complaint. He finds that under natural conditions the stream had its source in certain living springs, which discharge their waters, by definite and clearly-marked channels, into Big Lake, and thence southeast, though not by a continuous surface channel, but with a definite and clearly-marked flow, across other lands, and on and past plaintiff's lands, and into the West Branch of Beaver creek, and that in so doing the water spread out in places, and flowed over and through the moss and peat, and in many places made for itself bed, banks, and channels, some of which still exist, and was of such volume, when confined to a narrow channel like the canal in question, as to be capable of floating saw logs. His findings, so far as the source, direction and volume of the stream are concerned, support the allegations of the complaint, and in some of the main particulars are even stronger than alleged therein. His findings in these respects are most earnestly challenged as not being supported by the evidence, and as being contrary to the real weight of the evidence. The earnestness of this contention has induced the court to examine with the most painstaking care and thoroughness the great mass of testimony preserved in the printed record, and to consult the many maps and exhibits in the case, which are claimed to possess helpful value. This examination leads to the disclosure that as to very many of the main facts the evidence is in irreconcilable conflict. A finding either way upon many of the disputed questions would find support in the evidence submitted. Such sharp conflicts, such positive contradictions, emphasize the necessity of the appellate court adopting the rule of not disturbing the findings of the trial court unless they are clearly against the preponderance of the evidence. The trial judge possesses many advantages of judging the credibility of witnesses. He becomes invested with many facts, circumstances, and details on the trial that cannot be transmitted to us; and when it is evident that he has reviewed the case with care, and that he has sought, as seems in this case to have been done, to carefully and impartially distinguish the true from the false, his conclusions ought not lightly to be brushed aside. We find this to be a case where the situation of the trial judge must have been very helpful in arriving at a conclusion. A careful review of the evidence in detail convinces us that the findings of the court below ought not to be disturbed. It would serve no useful purpose to discuss the evidence at length. The opinion of Mr. Justice MARSHALL, filed at the former hearing, contains a sufficiently ample discussion of the evidence to support the conclusion we have reached. The findings of the court in regard to the so-called Goodyear contract cannot be successfully impeached. There can be no doubt but that such a contract was made, that it was founded upon a valuable consideration, and that, so far as the plaintiff's use of the water from the canal is concerned, his rights were open, visible, and notorious. The findings seem to be strictly in accord with the great weight of the evidence, and with all the probabilities of the case. At the time the defendant Hoffman made his alleged purchase of the Goodyear interest in the canal, he found this contract so far executed that the lateral waste-water ditch had been dug to the eastward, and plaintiff had tapped the main canal, and was in the enjoyment of a supply of water therefrom for the purpose of cranberry cultivation. The main canal had been dug across plaintiff's land without his consent, and the great volume of the water that came to his land naturally had been diverted to the south. In times of high water, large...

To continue reading

Request your trial
57 cases
  • Becker v. Chester
    • United States
    • United States State Supreme Court of Wisconsin
    • June 19, 1902
    ...and sufficient grounds for such final conclusion, is as effectually passed upon as the ultimate question solved. Case v. Hoffman, 100 Wis. 334, 75 N. W. 945, 44 L. R. A. 728;South Bend Chilled Plow Co. v. George C. Cribb Co., 105 Wis. 443, 81 N. W. 675; School Trustees v. Stocker, 42 N. J. ......
  • State ex rel. Cook v. Houser
    • United States
    • United States State Supreme Court of Wisconsin
    • October 20, 1904
    ......        4. For the present case, the time not having arrived when the Secretary of State is required to make certification of the nominations, by the general rule, there is no ...Case v. Hoffman, 100 Wis. 314-356, 75 N. W. 945, 44 L. R. A. 728;Turner v. Commonwealth, 2 Metc. (Ky.) 619; 2 Bac.'s Abb. tit. “Court”; Fowler v. Brooks, 64 N. ......
  • Orr v. Sutton
    • United States
    • Supreme Court of Minnesota (US)
    • October 9, 1914
    ...S. D. 453, 74 N. W. 239;Bolton v. Hey, 168 Pa. St. 418, 31 Atl. 1097; and Case v. Hoffman, 100 Wis. 334, 72 N. W. 330,74 N. W. 220,75 N. W. 945,44 L. R. A. 728. [2] One of the main defenses pleaded is: Plaintiffs were tendered payment of their judgment before the time arrived at which it mi......
  • State v. Henley
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2011
    ...was sought made the first and final decision on the merits of the disqualification motion. The exception occurred in Case v. Hoffman, 100 Wis. 314, 75 N.W. 945 (1898). ¶ 17 In Case, reconsideration of the court's decision was premised on the allegation that Justice Newman should not have pa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT