#### Ruehl vs. Voight and others.

Flowage oe Lands — Statute oe Limitations : (1) *Chap.*184, *Laws of*1862, *held to apply to the Mill Dam Law of*1840, *and to special chwrt&rs a/uthorizing*dams. (2) *Validity, and*(8) *Construction of the act.*

1. The provision of oh. 184, Laws of 1862, that no action for the flowing of lands shall he maintained when it shall appear that said lands have been flowed, by reason of the construction of any mill dam, for the ten years next preceding the commencement of such action — is applicable to dams built under the Mill Lam Law of 1840, or under special charter.

2. Even if a special charter for the erection of a dam could be regarded as creating a contract between the land-owner and the dam-owner, the legislature might, by a subsequent act, limit the time within which suit must be brought upon such contract, provided only that a reasonable time *after*the passage of the act were allowed for commencing the suit.

8. Under said chapter 184, a flowage of the land for ten years, by means of a dam, without any claim for damages (such flowage being adverse and not permissive) bars any action for such damages. So *held*where the damages claimed were merely those accruing during the *three years*immediately prior to the action.

APPEAL from tbe Circuit Court for *Dodge*County.

Tbe complaint alleges that tbe plaintiff is tbe owner in fee of certain described lands, and bas owned and been in possession of them for more than three years next prior to tbe filing of tbe complaint; that tbe lands are situate near Eock river, a public highway and navigable stream, across which, below these lands, tbe defendants, during said period of three years, have kept and used a water-mill and mill-dam, and have so kept and maintained tbe same by virtue of an act of tbe territorial legislature of Wisconsin, entitled “ an act to authorize John Hustis to build and maintain a dam on Eock river, and for other purposes,” approved February 24, 1845, which tbe plaintiff refers to and makes part of his complaint; that this mill-dam is of an unreasonable height, to-wit, of the height of nine feet and more, and higher than the defendants have any *154light to maintain tbe same; and that it bas, for tbe period mentioned, caused tbe waters of Rock river to overflow its natural banks, and to flood tbe plaintiff’s lands, rendering tbem unfit for use. Prayer, for an assessment, under tbe statute, of damages sustained witbin said period of three years, and for a determination as to bow much tbe dam should be lowered.

Tbe answer contains three defenses. Tbe third defense sets up that tbe defendants derive their interest in said mill-dam and water-power, through mesne conveyances, from one John Hustis ; that be erected tbe mill-dam more than ten years before tbe commencement of tbe action; and that tbe same bas been ever since maintained by him, and those claiming under him, at thesame height as at present; that plaintiff’s lands have been flowed and injured for tbe said ten years to as great extent as now, and as in tbe last three years before suit was commenced; that tbe dam and water-power, and tbe flowing of plaintiff’s lands, have for tbe ten years mentioned been held and enjoyed by tbe defendants and tbe persons under whom they claim, adversely to tbe plaintiff and all other persons; wherefore tbe defendants demand that tbe complaint be dismissed, and that tbe dam’be established permanently by tbe judgment of tbe court.

Tbe plaintiff demurred to this defense; and from an order sustaining tbe demurrer tbe defendants appealed.

*L. T.*Fribert, for appellants,

contended that tbe defense was sufficient under chap. 184, Laws of 1862. *Booker v. Perkins,*14 Wis., 79.

*J. M. Gfillet,*for respondent:

Tbe charter (act of February 24, 1845) was a contract, binding upon tbe land owner and tbe owner of tbe dam. Tbe state, in its sovereignty, acting for both parties, contracted and agreed that Hustis might flow tbe plaintiff’s lands upon condition that be should pay tbe damages occasioned thereby, and that tbe plaintiff should have compensation in case of such flowing. An act of tbe legislature may be a contract 6 Ohio St., 361; *155Bouvier’s Die., “Contract.” This court bas in many cases asserted tbe doctrine, tbat a law granting rights or privileges is a contract, as in case of tbe right to entry of school lands (4 Wis., 414); railroad charters (8 Wis., 287 and 603); and acts providing for laborers’ liens, *¡strevhél v. Mil. & Miss. R. R. Co.,*12 Wis., 67. ' This charter to Hustis imposed upon him and his sucessors the obligation to pay damages in the mode prescribed by the Mill Dam Law, *i. e.,from year to year, for so long*as *the dam should he maintained,*unless he should pay the same in gross, at his election. No limitation can be interposed or be available against the claim of the plaintiff. (1.) Because the entry was under a license or agreement from the plaintiff, and not adversely. Limitation and prescription are founded upon adverse possession. Angelí on Watercourses, secs. 209, 210. True, the plea alleges that the enjoyment was “ adverse but that is not to be taken as true in the legal sense of “ adverse,” because the answer claims under John Hustis and under his charter. (2.) No limitation could be imposed upon the future annual compensation to which the plaintiff might be entitled, without giving time for bringing an action. The plaintiff contracted that he would not claim at any time more than three years’ past damages, and at the same time Hustis agreed that he would for all future time, or during the time of maintaining the dam, pay the damages accruing for three years next before complaint filed therefor. If he had claimed damages for ten years before suit was brought, the limitation would be good for the first seven years claimed, and bad for the last three. (3.) The law of 1862, chap. 184, is not applicable to dams built under the Mill Dam Law of 1840, or under special charters, because they are to be regulated by the laws under which they were erected. But, if applicable at all, it would apply to damages theretofore accrued, or to accrue within one year thereafter. The party suffering damages had, by the terms of the act, one year after its passage to bring suit. It could not, therefore, apply to future accruing damages. (4.) *156Suppose tbe plaintiff bad brought 'suit eacb year from tbe time of tbe flowing down to tbe year for wbicb tbe suit was brought, and that tbe defendants bad paid tbe judgments, or that the defendants bad voluntarily paid the damages, could it be claimed that tbe legislature could take away tbe present right of action? Clearly not. To make tbe third answer a legal defense, it must therefore aver (wbicb it does not) that no damages bad been paid, and no suit brought.

Tbe case of *Hooker v.*Perkins, 14 Wis., 79, turned mainly upon tbe question, whether certain alleged consequential damages were recoverable in such a proceeding; and tbe question of limitation was not at all discussed, but it was held that, by analogy to tbe statute of limitations, a *grant*would be presumed after twenty years peaceable and uninterrupted *adverse*possession. We contend here that there cannot be any adverse possession or limitation under tbe mill-dam law, because tbe entry is under contract, and by license. *Tinkham v. Arnold,*3 Me., 120. In tbe case of *Pumpeily v. Green Bay and Mississippi Canal*Company, argued before tbe United States Circuit Court at Milwaukee, that court held bad, on demurrer, a plea setting up this law of 1862. That law is unconstitutional, because it impabs tbe obligation of tbe contract between tbe plaintiff and defendants, made by the mill-dam law of 1840. Tbe law of 1840," by its own terms, created tbe only limitation wbicb tbe defendants can set up, to wit, a prohibition against recovering damages for more than three years next prior to tbe commencement of tbe action. Tbe act of 1862 is an attempt to wipe out all claims of land owners by one sweeping provision, irrespective of tbe conditions under wbicb tbe flowing may have been maintained, whether adversely, under license, with acquiescence, under claim of right, or otherwise.

Cole, J.

It appears to us that little more need be said in this case than to cite tbe statute of 1862, chap. 184. That statute declares that no action for tbe flowing of lands shall be main*157tained in any court in this state, when it shall appear that said lands have been flowed by reason of tbe construction or erection of any mill dam for tbe ten years next preceding tbe commencement of such action. This is obviously a statute of limitations applicable to this class of actions. It is suggested on tbe brief of tbe counsel for tbe plaintiff, that this statute is not applicable to dams built under tbe mill dam law of 1840, or under special charters like tbe case before us. "We are unable to concur in this view. Tbe language of tbe statute is clear, precise and comprehensive, and bars every action where tbe lands have been flowed for ten years without any claim for damages. Tbe statute means this, or it has no meaning whatever. True, in this case it appears that tbe dam was erected under a special charter of tbe legislature; and it is said that this charter was in tbe nature of a contract binding upon tbe land owner and tbe owner of tbe darn. For tbe purposes of tbe argument we will assume that this is a correct view of tbe charter; and bow does it help tbe case ? It must, we think, be admitted that tbe legislature has tbe power to restrict tbe right to bring suits upon contracts express or implied. It has exercised this power in other cases, and tbe validity of limitation statutes cannot be questioned.

Of course, tbe legislature cannot pass an act by which a past right of action shall be barred, without any allowance of time for bringing tbe suit. It must afford a reasonable opportunity to bring tbe action before tbe bar will apply. With this qualification, tbe legislature may restrict tbe time for bringing actions on contracts as it may think proper. It has certainly, in chap. 184, limited tbe right of action for damages caused by tbe flow-age of lands to ten years after tbe right of action accrues.

Tbe third defense in tbe answer alleges, in substance, that tbe lands of tbe plaintiff have been flowed by tbe dam for more than ten years next preceding tbe commencement of tbe action, as much and to as great an extent as when tbe suit was instituted ; and that this right of flowage of tbe plaintiff’s lands has been enjoyed by tbe defendants, and these persons under whom *158tbey claim title to tbe dam, for more than ten years, adversely to tbe right of tbe plaintiff. Such_a fiowage for that period, free from any claim for damages on tbe part of tbe plaintiff, bars tbe action. *Rooker v.*Perkins, 14 Wis., 79. I have examined tbe case of *Tinkham v. Arnold,*3 Maine, 120, to which we were referred for a correct exposition of tbe law on tbe question before us; but that decision is manifestly inapplicable, even if it stood an unquestioned authority, as it certainly does not. See *Williams v. Nelson,*23 Pick., 141. It does not appear that tbey bad in Maine, when *Tinkham v. Arnold*was decided, a statute like chap. 184, which bars an action for damages for the flowing of lands after ten years from tbe time tbe cause of action accrued.

Tbe demurrer to tbe third defense set forth in tbe answer should have been overruled.

*By the Court.*—Tbe order of tbe circuit court is reversed, and tbe cause remanded for further proceedings according to law.