Smith v. Russ

17 Wis. 227

Opinion

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 otjier 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 instruction asked by the defendants, and also in the charge to the jury upon their return into court for further advice. The instruction asked by the plaintiffs seems to have been too broad. It excluded the idea of a prescriptive right in the defendants in case the jury had found that the lands had been flowed for a period of twenty years before the commencement of the action.

Judgment reversed, and a new trial awarded.