Waller v. McConnell
Wisconsin Supreme Court
APPEAL from tbe Circuit Court fpr Waukesha County. Action to recover damages for tbe flowage of plaintiff’s land, caused by tbe maintenance of a mill dam across tbe Ocono-mowoc creek, tbe outlet of Okaucbee lake in said county. Tbe premises flowed are described as “about twenty-eigbt acres on lots Nos. 4 and 5 in sec. '80 in tbe town of Merton,” &c.
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APPEAL from tbe Circuit Court fpr Waukesha County. Action to recover damages for tbe flowage of plaintiff’s land, caused by tbe maintenance of a mill dam across tbe Ocono-mowoc creek, tbe outlet of Okaucbee lake in said county. Tbe premises flowed are described as “about twenty-eigbt acres on lots Nos. 4 and 5 in sec. '80 in tbe town of Merton,” &c. Tbe complaint demands damages for tbe three years immediately preceding tbe commencement of tbe action, and a verdict assessing tbe annual and gross compensation for future flowage, in accordance with cb. 56, E. S. Tbe answer, after a general…
1Opinion of the Court
By the Court,
Dixok, C. J.
This is an action under the *419Mill Dam Law (R. S., ch. 56), to recover and settle the damages of the plaintiff for lands flowed by the defendant’s dam. The Mill Dam Law is applicable in terms only to streams “not navigable.” The complaint does not state a case within the law. It is not averred, nor was it proved on the trial, that the stream is “not navigable;” and as we cannot take judicial notice that it is not, the judgment must for this reason be reversed. We discover no other error in the proceedings.
Judgment reversed, and cause remanded for further proceedings…
2Cited by1 opinion
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