Pioneer Wood Pulp Co. v. Chandos

• Decision Date: 13 January 1891
• Parties: PIONEER WOOD PULP CO. v. CHANDOS.
• Court: Wisconsin Supreme Court

78 Wis. 526

47 N.W. 661

PIONEER WOOD PULP CO.

v.CHANDOS.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.Gardner & Gaynor and David S. Ordway, for appellant.

George L. Williams, for respondent.

COLE, C. J.

In considering this case one should not lose sight of the fact that it is an equitable action, and that mere technical legal objections must yield to substantial equitable rights. The plaintiff, and those under whom it claims, have for nearly 40 years been in possession of the premises in dispute, have built and repaired the dam, frequently, have made valuable improvements, and invested large sums of money in ultilizing a water-power, created by the dam, without any objection or warning therefrom, by the defendant, or by those under whom she claimed title. These facts constitute a very strong ground for equitable relief, if it can be given consistently with settled principles of law. Laches or delay in asserting or enforcing a right, while a party has knowledge of the facts, will often operate to bar a remedy which is discretionary with a court of equity to grant or withhold. When this case was before the court on the appeal from the order granting a preliminary injunction, it was said by Mr. Justice TAYLOR, in the opinion, (36 N. W. Rep. 321,) that, upon the facts stated in the complaint, the plaintiff had fair grounds for claiming that it had the right to maintain its dam in the place where it had been maintained for more than 20 years, before it was destroyed by the defendant, upon two grounds: (1) Under the grant of the legislature, in 1847, as a successor to the rights of Miner & Clinton, the donees in such grant; and (2) under the statute of limitations. On the final trial and hearing of the cause upon the merits, the learned circuit court found in favor of the plaintiff's claim, upon both these grounds, and granted a perpetual injunction restraining the defendant from interfering with its rights, as therein defined. We shall not attempt to determine the rights of the plaintiff upon the first ground, but shall rest our decision upon the second, namely, adverse possession for more than 20 years, without regard to the rights which it may have acquired under the acts of the legislature. We think the plaintiff's claim, that it has a right to maintain the dam in question, at the height and in the manner it had maintained it, is clearly established by prescription. The learned counsel for the defendant intimates that the right to maintain the dam, acquired by prescription, is not distinctly relied on in the complaint, and therefore that the defendant should not now be forced to meet that issue. But, that the complaint does rely upon adverse possession as one ground of relief is apparent from this averment alone; and “the plaintiff further alleges that those under whom it claims and has title to said premises, water-power, and dam, for more than twenty years immediately succeeding the year of 1847, to-wit, for forty years thereafter, continuously and uninterruptedly kept up and maintained said dam across the main channel of said river, abutting the same on said ‘Nine-Acre Island,’ at the same point, and uninterruptedly flooded, during all said period, the lands above described, as fully and to as great an extent as they were being flooded when the said dam was destroyed; that said dam was maintained, and was abutted, upon said island or shore, during all said period, and continuously and uninterruptedly for upwards of twenty years, with the full knowledge of those claiming adverse interests in said island and westerly shore, and against the interests of such claimants or owners, under a claim of right so to do, and not otherwise.” This, it appears to us, states, with sufficient clearness, the fact that the plaintiff relied upon title by prescription, though it is true that this is not its whole claim. But it is enough to give the defendant notice that adverse possession for 20 years would be relied on, and the defendant was doubtless as fully prepared as she ever would be to meet that issue.

Among other things, the court below found, in substance, upon the evidence, that the dam had been built, kept up, and maintained, continuously, by the various owners for more than 20 years, and that the land was flooded and the water diverted to the east channel, with a full knowledge of those claiming adverse interests to the westerly shore and island, and against the interests of such owners, under a claim of right so to do. That there is abundant testimony to support this finding cannot well be denied. It is said that there is no evidence that the entry was hostile or adverse, so as to set the...