Murray v. Scribner
| Decision Date | 22 November 1887 |
| Citation | 70 Wis. 228,35 N.W. 311 |
| Parties | MURRAY v. SCRIBNER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Green Lake county; GEO. W. BURNETT, Judge.
The defendant erected and maintained a mill-dam upon and across the west branch of the Fond du Lac river, thereby creating a water-power to run his flouring-mill. The plaintiff owns a farm upon the river a few miles above. July 3, 1882, this action was commenced under the milldam law for damages to the farm caused from flowage by reason of the dam. The defendant answered, and, in effect, denied such flowage or damage, and alleged that the dam and the waters of said stream above said dam had been maintained at the same height continuously for more than 25 years before the commencement of the action. By amendment the defendant further answered, to the effect that he and his grantors had peaceably, under a claim of right, and adversely to all others, maintained said dam and the waters in said river to the same height uninterruptedly and continuously for 10 years and more next preceding January 1, 1864, and ever since, and for 10 years next preceding January 1, 1874, and forever since. Upon the trial, the jury returned a special verdict to the effect (1) that the plaintiff was the owner of the farm; (2-5) that by reason of the maintenance of the dam and obstruction of the river by the defendant between July 1, 1879, and October 1, 1886, said farm had been injured by the overflow of half an acre, and the soakage of 40 acres, to the amount of $17.50; (6, 7) that the dam should not be lowered any, nor left open any part of the year; (8, 9) that so long as the dam is used in conformity with the verdict, the payment of $30 annually would be a just and reasonable compensation, or $300 in gross for the perpetual right to so use the same; (10) that the defendant maintained the water in his mill pond by means of his mill-dam, for the use of his mill, openly, peaceably, and adversely, under claim of right, at the same height for the 10 years next preceding the commencement of this action, except when prevented during said 10 years by casualty, leakage, draught, evaporation, or the use of water for his mill; (11) that he did the same, subject to the same exceptions, for the 10 years next succeeding the building of his dam in 1864; (12) that he did the same subject to the same exceptions, for same consecutive 10 years after the rebuilding of the dam in 1864, and before the commencement of this action; (13-16) that the defendant never increased the height of water in his pond since May 1, 1864; (17-19) that the defendant and prior owners raised and held the dam at the same efficient height from its erection in 1856 to the commencement of this action--26 years--except when prevented by casualty; (20) that the water which flows the plaintiff's land comes from the river and other lands above his, or one of them; (21) that the full head of the defendant's water-power is at a bolt-head, 3 1/2 inches below the top of a post described; (22) that the lowest point of the plaintiff's land is 1 1/2 inches higher than a level line from the full head of the water-power; (23) that the mill pond at full head flowed the plaintiff's land before the drainage of Rosendale marsh, in 1879, and later, and before the completion of the ditches on plaintiff's land, and other lands above his, in 1876 and later, on other occasions than extraordinary and unusual freshets; (24) that the flow of water in the river above and along plaintiff's land has not been largely increased beyond the river's natural capacity since 1879, by the artifical drains last mentioned; (25) that the flowage does not occur solely in freshets, whether ordinary or extraordinary; (26) that the primary and proximate cause of the flowage is the defendant's mill pond; (27-28) that the plaintiff's land was naturally half marsh and half bottom, and before the erection of the dam was subject to flowage by freshets; (29) that no part of said lands were continuously flowed or otherwise injured for a period of 10 years next prior to this action by reason of the dam. Thereupon the defendant, upon the pleadings, record, and special verdict, moved the court to set aside said verdict, and for a new trial, on the ground that the same was inconsistent and contradictory, which was, by order entered November 20, 1886, denied by the court; and thereupon the plaintiff and defendant severally moved the court, upon the pleadings, the record, and said special verdict, for a judgment upon said special verdict, each in his own favor; and upon the hearing thereof the court, by order entered November 20, 1886, denied the defendant's motion, without costs, and granted the plaintiff's motion; and ordered that he have judgment against the defendant for the damages awarded, and costs to be taxed. The defendant brings this appeal from each of said orders so entered November 20, 1886, and the whole and every part of each.
Geo. P. Knowles, for respondent.
Chas. E. Shepard, for appellant.
A mere...
To continue reading
Request your trial
-
Neyens v. Flesher
...verdict which has been accepted and filed, neither of these acts will constitute a judgment. Elliott's App. Prat. § 83; Murray v. Scribner, 70 Wis. 228, 35 N. W. 311; Black on judgments, § 3; Whitwell v. Emory, supra; Putnam v. Crombie, 34 Barb. (N. Y.) 232;Warren v. Shuman, 5 Tex. 441;Scot......
-
Neyens v. Flesher
... ... filed, neither of these acts will constitute a judgment ... Elliott, App. Proc., § 83; Murray v ... Scribner (1887), 70 Wis. 228, 35 N.W. 311; 1 Black, ... Judgments, § 3; Whitwell & Hoover v ... Emory, supra; Putnam v ... Crombie ... ...
-
City of La Crosse v. Cameron
... ... and title had become vested in the defendants.' ... See, ... also, Sabine v. Johnson, 35 Wis. 185, and Murray ... v. Scribner, 70 Wis. 228, 233, 35 N.W. 311 ... We ... quote thus at length from the opinion of Mr. Justice Orton ... because in ... ...
-
Trs. of St. Clara Female Academy of Sinsinawa Mound v. Delaware Ins. Co.
...then the reference proceeded under the corrected judgment; and, for the amount reported, judgment was finally given. In Murray v. Scribner, 70 Wis. 231, 35 N. W. 311, it was held that a mere interlocutory order for judgment is not appealable, although it denies the motion of one party for j......