June Term, 1860.

#### Newton vs. Allis.

Where an action has been brought for damages for the *wrongful*erection and maintenance of a mill dam, and also for an injunction against the further maintenance of such dam, the plaintiff should not be allowed at the trial to amend his complaint, so as to make it conform to the provisions of the mill dam law, and proceed for the recovery of compensation under that law.

ERROR to tbe Circuit Court for *Fond du Lac*County.

Tbe complaint in this case, which was filed in February, 1859, alleged tbe *wrongful*erection and maintenance by tbe defendant, of a mill dam, by means of wbicb tbe plaintiff’s land bad been overflowed during six years next before tbe commencement of tbe suit, demanding judgment for $5,000 damages, and also that tbe dam be abated and the defendant *379be restrained from maintaining any dam by which the plaintiff’s land should be overflowed. The answer was, other things, that the dam was erected in 1843; that the defendant had always been ready and willing to make compensation for damages, pursuant to the provisions of the statute in relation to mills and mill dams, but that no proceeding had been taken under that statute, to obtain such compensation.

On the trial the circuit court refused to receive any evidence of the damages sustained by the plaintiff, on the ground that the action was improperly brought, and could not be sustained; to which ruling the plaintiff excepted. The plaintiff then asked leave to strike out of the complaint “ so much of the prayer as sought greater relief than damages which was refused by the court, and the plaintiff excepted. Judgment of nonsuit.

*Edward S.*Bragg, for plaintiff in error,

contended that the mill dam law prescribed the substance of the complaint, but not its form, and that the complaint in this case was within its requirements. E. S., chap. 56, §5; 11 Mass., 462. 2. The law applies only to streams “not navigable,” and the defendant had introduced no evidence to show that the stream in question was of that character. Hence the judgment of nonsuit was granted prematurely. 3. The plaintiff ought to have damages for a period of time not covered by the mill dam law. A right of action for those damages existed at the time of the passage of the act of 1857.

*J. M.*Qillet, for defendant in error:

The repeal of the mill dam law of 1840 did not affect the right of a party whose land had been injured by the erection and maintenance of a mill dam while the law remained, to relief under its provisions. *Stevens vs.*Marshall, 3 Chand., 222. The present action is not maintainable under the existing law; not even for damages resulting from a maintenance of the dam while no statute on the subject was in force. R. S., 1858, chap. 56, §§ 26, 28; *Fisher vs. Horicon Iron Co.,*10 Wis., 351; *Thomas vs. Same,*decided at the last term of this court, but not reported.

*380July 30.

*By the Court,*

PAINE, J.

This suit was brought, obviously, . as a common law action, for tbe flowing of tbe plaintiff’s land by the ei’ection of a mill dam. Tbe judgment demanded was for damages, and a perpetual injunction against maintaining tbe dam. While tbe suit was pending, and after an answer bad been put in by tbe defendant, setting up tbe mill dam law by way of defense, tbe decision of this court was announced, bolding tbe mill dam law constitutional. Tbe plaintiff then claimed that bis complaint was sufficient as a proceeding under that law to recover bis compensation, and asked leave to amend by striking out bis prayer for an injunction, wbicb tbe court refused.

Tbe only question here presented is, whether be should have been allowed to go on with Ms action as a proceeding under tbe statute to recover compensation for tbe taking of bis land. It may be that tbe facts averred in tbe complaint would be sufficient in a proceeding under tbe statute, but it is obvious that they were averred for an entirely different purpose. Tbe theory of tbe common law action was, that tbe land bad been wrongfully flowed, and that the plaintiff was entitled to damages therefor, and to prevent a continua ■ tion of tbe trespass, tbe equitable and legal relief being sought in one suit under tbe Code. Tbe theory of tbe statutory proceeding is, that tbe land is lawfully taken for public use, and that tbe owner is entitled to bis compensation. Tbe one proceeding is different in its entire scope and object from tbe other, and they are founded upon entirely different rights. This being so, we do not think tbe party should be allowed to change tbe one into tbe other. He should stand or fall with tbe right wbicb be made tbe foundation of bis suit Suppose a party should bring a suit to set aside a contract on tbe ground of fraud, and tbe defendant should set up a complete defense to the charge of fraud. If tbe complaint happened to contain sufficient facts to show a liability on the contract by tbe defendant, ought tbe plaintiff to be allowed to abandon tbe entire object of bis suit, and take a judgment such as be might be entitled to under tbe contract ? We think not. For that might have been a liability that the defendant never would have contested. And the same is *381true here. If tbe plaintiff desires to proceed tinder tbe statute, be should commence for that purpose.

Tbe judgment must be affirmed, with costs.