Eulrich v. Richter

41 Wis. 318

• Court: Wisconsin Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

Cols, J.

The first error assigned in this case is, that ¡the verdict is unsupported by the testimony. Whether the preponderance of testimony may not be against the assumption that the locus in quo was a watercourse in the legal sense, is a question we shall not consider. For certainly there is evidence from which the jury might very properly have found that it was a watercourse which the defendant had obstructed; and this is all we deem it necessary to say in respect to the first error assigned. We have so frequently declined to disturb a verdict on the mere ground that it was contrary to the weight of evidence, that the rule should be deemed settled.

Another exception relied on for a reversal of the judgment is the alleged error in the charge wherein the learned circuit judge instructed the jury that surface water without a spring, whenever it had flowed in a certain direction for such a length of time as to have naturally formed a bed and banks, and a well defined stream of flowing water, even though it might sometimes be dry at the place where it had formed such banks and bed, still at that point would be a watercourse. The jcir-cuit judge in his charge defined a watercourse substantially in the language of this court. The jury were told that a watercourse, in a legal sense, is a stream of water flowing in a cei’-tain direction by a regular channel with banks or sides, though it is not essential, to maintain that character, that the water should flow continually. And the distinction was clearly stated between a regular flowing stream of water which at certain seasons dries up, and those occasional bursts of water which, in times of a freshet or the melting of snow and ¡ice, descend from the hills and inundate the country. On the other hand, mere surface water, the jury were told, is such as i's caused by rain or melting snow which naturally flows down a hollow or ravine in no defined channel, having no proper bed and banks; and such waters the court said the defendant had the right to keep off her land by the use of such means as she might deem necessary for that purpose. This direction is in accord with the decisions of this court in the cases cited by Counsel. Eulrich v. Richter, 37 Wis., 226. "We do not think there was any substantial error in the charge. The instructions asked on the part of the defendant, so far as they were correct and applicable to the facts, were fully embraced in the charge given. It follows from this that there was no error in refusing to give them as asked.

By the Oowrt. — The judgment of the circuit courtis affirmed.