Mueller v. Fruen

• Decision Date: 22 December 1886
• Parties: MUELLER AND ANOTHER v FRUEN.
• Court: Minnesota Supreme Court

36 Minn. 273

30 N.W. 886

MUELLER AND ANOTHERvFRUEN.

Supreme Court of Minnesota.

December 22, 1886.

(Syllabus by the Court.)

By analogy, the provisions of the statute of limitations with regard to actions for the recovery of real property of which the owner is disseized, will, in the absence of any special statute on the subject, apply equally to easements adversely used. Hence, to acquire a right by prescription to flow the lands of another, there must be 20 years' uninterrupted adverse user or enjoyment.

Mere delay in commencing a suit, or even acquiescence in the act of the defendant, (unless under circumstances that would create an equitable estoppel,) short of the period of 20 years necessary to give defendant a right by prescription to flow plaintiff's land, will not bar his right of action to abate a dam, causing the overflow, as an existing nuisance.

Appeal from district court, Hennepin county.

E. E. Witchie and Smith & Read, for appellants, Mueller and another.

G. W. M. Pittman, for respondent, Fruen.

MITCHELL, J.

This was an action to abate a dam which defendant had built on his own land across Bassett creek so as to raise the water in the creek, and thus overflow plaintiffs' land situated above. The defendant, by way of defense, pleaded that he had maintained this dam in its present condition continuously for more than 12 years before the commencement of this action. To this plaintiffs demurred, on the ground that it did not state facts sufficient to constitute a defense. From an order overruling this demurrer plaintiffs appeal. The only question involved in this appeal is whether, upon the facts pleaded in the answer, this action was barred by the statute of limitations.

The action is brought to abate the dam as an existing and continuing nuisance, and, unless there be some statute expressly providing otherwise, it would seem very clear that such an action may be maintained at any time before the defendant has acquired a right by prescription to flow plaintiff's land. The analogy between prescription and limitation is so exact and perfect that, both in England and in this country, the courts have, in the absence of any special statute on the subject, uniformly held that the provisions of the statute of limitations with regard to the time of entry by the owner on lands of which he is disseized, apply equally to easements adversely used. Therefore the nature and duration of the user or enjoyment of an easement which will constitute a valid right by prescription are precisely the same as are required by the statute of limitations to enable occupants of lands to defeat the title of the true owners. Gould, Waters, § 329; Ang. Water-courses, § 203 et seq.; Washb. Easem. 148; Haight v. Price, 21 N. Y. 241;Prentice v. Geiger, 74 N. Y. 341;Vail v. Mix, 74 Ill. 127;Coe v. Wolcottville Manuf'g Co., 35 Conn. 175;Carlisle v. Cooper, 19 N. J. Eq. 256;Tootle v. Clifton, 22 Ohio St. 247;Haag v. Delorme, 30 Wis. 591;Scheuber v. Held, 47 Wis. 340;S. C. 2 N. W. Rep. 779. Therefore, in this state, to acquire a right by prescription to overflow the lands of another, it would require 20 years' uninterrupted adverse user or enjoyment. Gen. St. 1878, c. 66, § 4. Whether or not an action for damages for the erection of the dam is barred, is immaterial, and would not affect the right to maintain an action to abate it as an existing nuisance. Eastman v. St. Anthony Falls W. P. Co., 12 Minn. 137, (Gil. 77;)Cook v. Kendall, 13 Minn. 324, (Gil. 297;) Thornton v. Webb, Id. 498, (Gil. 457.)

In the cases just cited this court held that the time within which an action of this kind might be brought was governed by Pub. St. 1858, c. 60, § 12, which provided that “an action for relief, not being before provided for, must be commenced within ten years after the cause of action shall have accrued.” This was repealed in 1866. The cases just cited are also decisive (if any authority to the point were...