Smith v. Russ
Wisconsin Supreme Court
APPEAL from the Circuit Court for Jefferson County. This was an action commenced in January, 1861, to recover damages for the flowing of the plaintiffs’ lands in consequence of the maintenance of a certain mill dam by the defendants between the 18th of June, 1857, and the commencement of the action.
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APPEAL from the Circuit Court for Jefferson County. This was an action commenced in January, 1861, to recover damages for the flowing of the plaintiffs’ lands in consequence of the maintenance of a certain mill dam by the defendants between the 18th of June, 1857, and the commencement of the action. The defense was, that the dam was erected in 1887, and had been maintained for more than twenty years at the same height as during the time- of such alleged flowage, and that the defendants had therefore acquired a prescriptive right to maintain tbe same at that beigbt. Tbe answer also denied the…
1Opinion of the Court
By the Court,
Dixosr, C. J.
It is obvious that the statute pf limitation did not begin to run upon the plaintiffs’ claim until tbeir lands were flowed. Before that they bad no action; and it was wholly immaterial whether tbe dam bad been built a long or a short time, except so far as it affected tbe question whether tbe backwater was caused by' the dam, or by some *230otjier obstructions of tbe. natural flow of tbe stream, not connected with tbe dam, which was a question of fact to be determined by tbe jury according as they should find from the evidence. The court was therefore wrong in giving the…
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