#### Waller vs. McConnell.

Where a complaint for damages under the Mill Dam Law does not show, and it is not proved at the trial, that the stream obstructed by defendant’s dam is “not navigable,” the plaintiff cannot recover. So *held,*in a case where the objection was taken at the trial.

APPEAL from tbe Circuit Court fpr *Waukesha*County.

Action to recover damages for tbe flowage of plaintiff’s land, caused by tbe maintenance of a mill dam across tbe Ocono-mowoc creek, tbe outlet of Okaucbee lake in said county. Tbe premises flowed are described as “about twenty-eigbt acres on lots Nos. 4 and 5 in sec. '80 in tbe town of Merton,” &c. Tbe complaint demands damages for tbe three years immediately preceding tbe commencement of tbe action, and a verdict assessing tbe annual and gross compensation for future flowage, in accordance with cb. 56, E. S. Tbe answer, after a general denial, alleges that tbe court has no jurisdiction of tbe subject of tbe action ; that tbe proceeding is unauthorized; that tbe complaint, does not state a cause of action. When tbe cause was called for trial, and after tbe jury bad been called, tbe defendant objected to tbe impanneling of said jury on tbe grounds, 1st. That tbe issue of law made by the pleadings was still pending and undetermined by the court. 2d. That a jury could not be impanneled as in ordinary cases ; but when tbe cause was ready for trial a *venire*should be issued for a jury for tbe special purpose, which should view tbe premises and report their verdict to tbe court as contemplated in sec. 11 of tbe Mill Dam Act. These objections were overruled, and tbe jury impanneled. After tbe plaintiff’s evidence was closed, tbe defendant moved for a nonsuit, on tbe ground s among others, that it did not appear from tbe complaint or tbe evidence that tbe dam was maintained on a stream not navigable. Motion denied. After tbe evidence for tbe defense was all in,' tbe defendant requested the following instructions, which were refused: “ 1. If tbe premises"were flowed by de*418fendant’s dam while the United States or tbe state of Wisconsin owned them, and the plaintiff purchased them while so flowed, and the water has not been raised, the plaintiff cannot recover, 2. If the jury cannot find from the testimony the original line made by the government surveyor’s meandering the lake adjoining plaintiff’s land, they must find for the defendant.” The court gave the jury the following instructions, which were excepted to by the defendant: “ 1. The fact that plaintiff’s land was flowed when he took a patent from the government, does not prevent him from recovering damages caused by the erection of the dam. 2. The owner of a fractional lot bordering upon a meandered stream or body of water, takes to the edge of the actual boundary of the stream or lake. 8. The defendant acquired no right in the lands by flowing it while owned by the general government.”'

Verdict for the plaintiff,' assessing his damages for three years, and also the annual gross compensation for future flow-age, and finding the location of defendant’s,dam, and also “ that the quantity of plaintiff’s land overflowed by said dam amounts to sixteen acres.” The defendant moved for a new trial, on the ground of erroneous rulings made and instructions given, and also for the following reasons : “ 1. The jury have not assessed the damages from the commencement of this proceeding to the date of their verdict, as the statute requires. 2. The jury do not find the height to which the water may be raised or the dam maintained in consideration of the payment of the annual or gross compensation. 8. The verdict does not give any particular description of the sixteen acres flowed, so that the defendant may know what land he has a right to i flow.” Motion denied ; and judgment upon the verdict; from which the defendant appealed.

*K Burllurt,c*for appellant. [No brief on file.]

*D. W. /Small,*for respondent.

*By the*Court,

Dixok, C. J.

This is an action under the *419Mill Dam Law (R. S., ch. 56), to recover and settle the damages of the plaintiff for lands flowed by the defendant’s dam. The Mill Dam Law is applicable in terms only to streams “not navigable.” The complaint does not state a case within the law. It is not averred, nor was it proved on the trial, that the stream is “not navigable;” and as we cannot take judicial notice that it is not, the judgment must for this reason be reversed. We discover no other error in the proceedings.

Judgment reversed, and cause remanded for further proceedings according to law.