Rich v. Keshena Improvement Co.

14 N.W. 191, 56 Wis. 287, 1881 Wisc. LEXIS 303

• Court: Wisconsin Supreme Court
• Decided: December 12, 1881
• Status: Published

Opinion

Lyon, J.

As we understand the complaint, it charges that the defendant company so negligently and defectively constructed and superintended certain of its dams across the "Wolf river and its tributaries, that such dams were unable to resist the pressure of the waters above them and Were carried out, thus flooding the stream below with an immense and unusual quantity of water; .also that such water was discharged through the gates of the defendant’s dams not carried away (presumably to save such dams) upon the lands of the plaintiff, causing the damage complained of. No complaint is made that the gates were wrongfully opened; the fair inference is that they were necessarily and lawfully opened. Neither is there any allegation that they were opened for the purpose of floating logs in the stream below, and no such inference can justly be drawn from the pleading.

The gravamen of the action is the negligence charged in respect to the construction and management of the dams which were carried away, and the consequent injury to the plaintiff’s land and crops. Eor such an injury a common law action may be maintained; and the mill-dam act affords no remedy therefor. Whether or not under the charter of the defendant the mill-dam act furnishes the exclusive remedy for the recovery of damages for injury to land below the dams, caused by discharging sufficient water to float logs down the stream, we do not decide. No such question is presented on this appeal.

Construing the allegations of the complaint by the statutory rule (R. S., 728, sec. 2668), we think a cause of action is stated therein, and hence that the demurrer was properly overruled.

By the Court.— Order affirmed.