Lockhart v. Geir

• Decision Date: 10 January 1882
• Citation: Lockhart v. Geir, 54 Wis. 133, 11 N.W. 245 (Wis. 1882)
• Parties: LOCKHART v. GEIR AND ANOTHER.
• Court: Wisconsin Supreme Court

54 Wis. 133

11 N.W. 245

LOCKHART

v.GEIR AND ANOTHER.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Door county.

O. E. Dreutzer, for appellant.

R. L. Wing, for respondents.

COLE, C. J.

The principal question in this case is, was evidence of a parol license to flow the plaintiff's land admissible under the answer?If so, would proof of such a license defeat a claim for damages prior to the commencement of the action?On the trial the circuit court, against plaintiff's objection, admitted testimony offered on the part of the defendants which tended to prove that when the defendant Henry purchased the water-power and 80 acres of land of the plaintiff, the latter represented that it was a good water-power, having 10 or 12 feet head, and would not flow more than 20 or 25 acres of the land which Henry proposed to purchase; that the land was plaintiff's; that the defendants would have no trouble with any one on account of flowage.It is now insisted that such evidence was not admissible under the answer because a license was not specially relied upon or pleaded therein.

Under the former system license had to be specially pleaded in trespass, and could not be given in evidence under the general issue, (1 Chit. Pl. 541,) and, doubtless, the same rule obtains under the Code.In this case, however, the answer, while it is informal, substantially sets up a license to flow the plaintiff's land, or what amounts to a license.After setting up the sale of the water-power by the plaintiff to the defendants, and the representations made by the plaintiff as to the height the water could be raised, it is alleged “that after the defendant had built his mill-dam and erected his grist-mill, he then found that he could get but nine feet head of water, and in getting that it overflowed more land than plaintiff represented it would; that the plaintiff then said that he owned all the land around said mill-dam, and that it would be all right; and that the defendant aforesaid would have no trouble.”

Now, under this allegation, the defendants might show that they had permission or license to flow the plaintiff's land in the first instance.Certainly it was sufficient to enable them to prove that the plaintiff waived all damages cause by such flowage until the license was revoked; for the facts stated show an express authority to make use of the land for that purpose.But, of course, proof of such permission to use the land would not establish a permanent right or privilege to flow, (Hazleton v. Putnam,3 Pin. 107;...