Lake v. Loysen

• Decision Date: 21 September 1886
• Citation: 29 N.W. 214,66 Wis. 424
• Parties: LAKE v. LOYSEN.
• Court: Wisconsin Supreme Court

66 Wis. 424

29 N.W. 214

LAKE

v.LOYSEN.

Supreme Court of Wisconsin.

September 21, 1886.

Appeal from circuit court, Outagamie county.

Appeal from an order denying a motion that the plaintiff be required to make her complaint herein more definite and certain. The complaint avers that the plaintiff is the owner in fee-simple and possessed of the W. 1/2 of the N. W. 1/4 of section 1, in a specified township and range, in Outagamie county, “except eleven acres heretofore conveyed to the Milwaukee, Lake Shore & Western Railway Company for a right of way and depot grounds;” also of the N. 1/2 of the N. W. 1/4 of the S. W. 1/4 same section; that the defendant erected a dam, at a specified place, across a certain stream, for the purpose of creating a water-power to propel a grist-mill owned by him, and has used, and is still using, the water-power thus created, for that purpose, without the consent of the plaintiff; that by means of said dam the waters of such stream have been obstructed, and caused to flow back upon the plaintiff's said land, and to water-soak a considerable portion thereof, “to-wit, forty-four acres thereof, to-wit, on the easterly half thereof,” damaging the plaintiff thereby to the amount of $800, and injuring her other lands not so flowed or water-soaked in the sum of $500; that the plaintiff has received no compensation for such injuries; that such stream is not navigable; that the dam was raised and the water has been and is maintained by the defendant at an unreasonable height; and that the dam ought not to be kept closed during the whole year. The height and length of the dam are also alleged. The relief demanded is such as is given under the provisions of the mill-dam act. Rev. St. c. 146.

The motion, which the court denied, was to require the plaintiff to make her complaint more definite and certain in the following particulars: “(1) In relation to the quantity and location of the lands alleged to be owned by the plaintiff, and as to the description and location of eleven acres mentioned in paragraph 1 of the complaint as having been conveyed by the plaintiff. (2) As to the dimensions of the dam described in paragraph 4 of the complaint, and particularly as to the height of the same, and of the high-water mark mentioned therein. (3) In the description of the land alleged to have been flooded and water-soaked, in paragraph 7 of the complaint, by reason of such dam. (4) The cause, nature, character, and extent of the injury alleged to have been done to lands of the plaintiff not flooded and water-soaked, in paragraph 10 of the complaint. (5) An explicit and consistent statement of the amount of damages claimed by the plaintiff from the defendant on account of the injury alleged to have been caused by said dam, up to the time of the commencement of this action. (6) A statement of the amount of the height of said dam which is alleged or claimed by the defendant to be unreasonable, and of the amount, in feet or inches, which the plaintiff claims said dam ought to be lowered. (7) A statement of the time or portion of the year during which it is claimed by the plaintiff said dam ought not to be kept closed.”Gabe Bouck, ...