#### Scheike vs. Johnson and others.

*Reversal of Judgment.*

A. judgment will not he reversed because some proposition in the judge’s charge to the jury was not strictly accurate, if upon the whole charge the jury could not have been misled as to the law applicable to the case presented by the appellant’s evidence.

APPEAL from tbe Circuit Court for *Jefferson*County.

This was an action under tbe statute relating to mills and mill dams, to recover damages for flowing plaintiff’s land, and to abate, tbe dam. Tbe answer, among other defenses, set up tbe statute of limitations in bar.

Tbe testimony on tbe part of tbe plaintiff tended to show a greater flowage in tbe years 1873 and 1874 than prior to that time; while that of tbe defendant tended to establish a flow-age to an equal or greater extent in previous years, and for a period ranging from twelve to twenty years prior to tbe commencement of tbe action.

Tbe exception taken to tbe charge of tbe court, comprising tbe point upon which this appeal was argued, and so much of tbe charge as is necessary to an understanding of tbe case, appear in tbe opinion.

Tbe defendants bad a verdict and judgment, and tbe plaintiff appealed.

*J. M.*Qillet, for tbe appellant,

argued that tbe rule laid down by tbe court in its charge required tbe plaintiff to show a flowage greater than that existing and exercised ten years prior to the commencement of' the action, regardless of any recession of tbe waters during tbe interval, whereas defendants’ rights were limited by tbe permanent flowage during tbe ten years; and that it prevented a recovery as to any portion of tbe land flowed within tbe three years prior to tbe action, in case a part bad been flowed for ten years, which was erroneous.

*385
      *G. W.*Bvrd, for tbe respondents,

as to tbe correctness of tbe charge, cited Tay. Stats., 812, 814, §§ 3, 4, 13, 15, 16, 17, and 818, § 42; *Boolcer v. JPerhms,*14 "Wis., 79; *Haag v.*Delorme, 30 id., 591; *Buehl v.*Voight, 28 id., 153; *Janssen v. Icom-mers,*29 id, 88. lie also contended that tbe exceptions were not sufficiently specific to present any question for review, citing *Morse v.*Gilman, 18 Wis., 373; *Tomlmson v. Wallace,*16 id., 225, and cases cited in note.

Cole, J.

On tbe argument, all exceptions to tbe rulings of tbe court on tbe trial were abandoned except those taken to some portions of tbe charge. Exceptions were taken to the charge relating to tbe defense of tbe statute of limitations. Upon that point tbe court, among other things, instructed tbe jury that if tbe plaintiff’s lands or some portion of them ■were flowed by reason of tbe dam for ten years next before tbe commencement of tbe action, to tbe same degree and uniform height that they were at tbe commencement of tbe action, and since, then tbe verdict must be for tbe defendants.

Tbe criticism upon this charge is; that if tbe plaintiff bad only ten acres flowed at tbe time tbe suit was brought, but bad bad forty acres flowed three years before that time, under this rule of tbe court tbe ten years flowing of tbe ten acres would bar a recovery for tbe injury to tbe forty acres flowed three years before tbe action was commenced, and subsequently, though tbe forty acres might not have been actually flowed for tbe full period required by tbe statute of limitations. Tbe whole charge must be construed together and with reference to tbe issues and evidence in tbe cause. Under such a rule of interpretation, tbe charge seems to be sufficiently accurate and precise. Tbe complaint was for tbe flowing and injury done to ninety-three acres of land, or some part thereof, belonging to tbe plaintiff. An effort was made on tbe trial by tbe plaintiff to prove that more of bis land was flowed in tbe years 1873 and 1874 than bad been *386prior to that time. ’ Indeed the plaintiff himself testified that in 18T1 a very small part of his land was below water, and that the portion flowed “was around the river, not much outside.” So that really no such state of facts existed or was .attempted to be proven as is supposed in the illustration made use of to show the incorrectness of this part of the charge. But besides, in immediate connection with this paragraph of the charge criticised, the court told the jury that if they found *“*from .the testimony that the plaintiff’s land or some part of it is flowed or otherwise injured by the dam, then, to mate the statute -of limitations of ten years available as a defense to the defendants, they must show that the water has been kept up by the dam to the same uniform height as that complained of as being increased flowage, for a period of ten years or more next preceding the commencement of the action; and the defendants are bound to’ make such showing by a preponderance of testimony. If the plaintiff’s land was flowed by reason of the dam ten years next before the commencement of the action, he is not entitled to recover, unless there has been increased flowage within that time. * * To entitle the plaintiff' to recover in case you shall find that his land or some part of it is flowed or otherwise injured by the data, it is not necessary that the dam should have been the sole cause of the increased flowage or injury; for though there may have been other obstructions, yet if you shall find from the testimony that but for the dam there would have been no increase of water on the lands, or that by reason of the dam the flowage or injury has been greater than it was before, the dam is to be deemed a cause of the increased flowage or injury. If within ten years next preceding the commencement of this action, by reason of increase in the height of the dam or because of any new obstruction, the dam has caused more of the plaintiff’s land to be flowed uniformly or otherwise injured, for such increase the defendants are liable for damages as though no *387right to keep up the water bad ever been acquired at all.” These quotations are sufficient to-show the general import of the charge; and when the charge is considered with reference to the evidence, it is unobjectionable. The criticism passed upon it, or upon portions of it, seems to us over nice and refined, and fails to point out any error which could have misled the jury. Of course, when the plaintiff showed that any portion of his land was flowed or injured by the defendants’ dam, it was incumbent on them to establish a prescriptive right thus to flow it. This was the issue in the case, and it appears to have been submitted upon the evidence, with no misdirection as to the law.

*By the Ootvrt.*— The judgment of the circuit court is affirmed.