Hooker v. Green

• Decision Date: 12 October 1880
• Citation: 6 N.W. 816,50 Wis. 271
• Parties: HOOKER v. GREEN AND OTHERS.
• Court: Wisconsin Supreme Court

50 Wis. 271

6 N.W. 816

HOOKER

v.GREEN AND OTHERS.

Supreme Court of Wisconsin.

Filed October 12, 1880.

Appeal from circuit court, Rock county.

Hall & Skinner and D. S. Wegg, for appellant.

I. W. & G. W. Bird, Hasttings & Green, and W. F. Vilas, for respondents.

RYAN, C. J.

It is, perhaps, among the incongruities of the common law, that there are matters pleadable either in abatement or in bar. 1 Chitty, 446. Among these, probably, is the defence that the action is misconceived; though this is not usually so pleaded, as the defence is available under plea in bar. 1 Chitty, 453; Gould, 268. Such is the nature of the plea involved in this appeal. In order to bring the dam, which is the subject of the action, within the mill-dam act, the complaint avers that the stream on which it is built is not navigable. The second defence sets up that it is navigable; that the action is, therefore, improperly brought, and prays that it should be abated. Strictly, perhaps, this defence might be pleaded in abatement; but, because they are dilatory, great precision is required in framing pleas in abatement. They should be certain to every intent. 1 Chitty, 462. And pleading that this action is misconceived, the plea should, perhaps, give the plaintiff a better writ--that is, the action which should be brought; for, if no action would lie, the plea should be in bar. 1 Chitty, 446, 458; Steven, 431. But it is unnecessary to determine the sufficiency of the defence, for it is unquestionably waived or overruled by the defences in bar immediately preceding and succeeding it in the answer.

At the common law, pleading in bar waived all pleas in abatement. Gould, 31. The Code, however, allows defences in abatement and bar to be pleaded in one answer. Supervisors v. Van Stralen, 45 Wis. 675. But the Code does not permit the same defence to be pleaded in abatement and in bar. Dutcher v. Dutcher, 39 Wis. 651. And when the same matter is set up to abate the action and to bar it, by all analogies the plea in bar must override the plea in abatement. Dilatory pleas are not favored; and it would be out of all keeping to permit the defendant to tender for trial an issue in abatement, and, failing in that, to tender for trial in the same answer the self-same issue in bar. In that case the defence in bar must stand, and the defence in abatement be held a nullity. Here, the general denial of the first defence puts in issue the averment of the complaint, that the stream is not navigable, and operates to override the same defence pleaded in abatement. A similar result is produced by the third defence, which pleads that the dam was built under the act of 1848, “to authorize the construction of a dam across the Crawfish river.” For the purposes of the answer it must be assumed that the stream is navigable. Being so, the act of 1848 is a public act. Att'y Gen. v. Eau Claire, 37 Wis. 400;Wis. R. I. Co. v. Manson, 43 Wis. 255. It is, indeed, a public act upon its face, because it applies the provisions of the mill-dam act, itself a public statute, to the dam which it authorizes. And the court is bound to take judicial notice that it subjects the dam here in question to the mill-dam act.

For, though the mill-dam act of 1840 was repealed by the Revision of 1849, yet its provisions survived as part of the act of 1848, authorizing this dam. Wood v. Hustis, 17 Wis. 416;Crosby v. Smith, 19 Wis. 449. And when the mill-dam act...