Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1868-09-02
DECISION OF THE SUPREME
COURT IN THE BLANCHARD
D0ERING CASE.
NATHANIEL BLANcHtRD and another, I
Respondents,
against
Louis DoERNG, and another,
Appellants.
D.. Nv ~.

LOUIS DoERNG, and another,
Appellants.
By DIXON, Chief Justice.
When this case was up before, on an
appeal from an intermediate order modi-
Tying the injunctional order first granted,
(2l Wis. 477,) it presented merely dry
legal question, as to the proper. construc-
ton Of the words of the deeds, under
which the defendants hold their water.
right. The cause has since been tried on
It's merits, and though very much of the
evidence offered by the defendants was
excluded, yet enough was admitted to
show on this appeal from the judgment,
some OF the circumstances which surround
the claim Of plaintiffs. Of these circum-
stances, the most material are those pro
duced by the witnesses Green and Gohres
Green was former part owner Of the
premises now occupied by the defendants
lie became such part owner in the year
1914, with the right to take and use sixty
four square inches Of water, for the pur
pose of propelling machinery on the
premises, and together with the other
part owner, built mill thereon, in that
year or the year following, which they
continued to own and use until the year
1858 or 1854, when they sold the prem
lses, with the right to draw the water;
which title, through mesne conveyance,
Thenow become vested in the defendant.
orig sixty-four square inches of water
has inally conveyed to Green and his CO.
partner, is parcel of the one hundred and
fifty square inches to which the defend
ants are now entitled After testifying
to an enlargement Of the fume through
which water was taken, by agreement
with the proprietors of the dam and
Water-poWer, in the year 1850, so that the
same was sixteen feet wide. inside, be
says that he left the possession of the
premises in 1858 or 1854. At the time
he left he had the same J7un1e 1,o1g used 6y
the deteadants, and the 10atey a1aS meas
~ed at the discharge. He does not know
whether he sold out before Blanchard
bought, or not. Blanchard bought about
the time he sold out He (witnes<) con-
tinued to use the water from the time he
bought until he sold out in the same
way.
Gohres testifes that he is acquainted
with the present side fume at the defend
ants mill. He built portion Of it in
1867. The same front part built by the
witness, and the fume are there yet. At
the time he built it, he worked for Hiram
w. Blanchard, the father of the plain
tiff8, aoho paid him for 1t and ordered han
to build 1t. 1t was built for the purpose
Of conveying the water from the mair
race to the defendants mill and wheel
4 lie dit not b.sj1d q gate to tbat stde-fun1t
at the side Qf the main race. Mr. Btanch
ard, aghsn 1t soas completed, ecanaiued 1t
and soas satisfied ruth It, Witness doe,
not know why Mr. Blanchard caused it tt
be built, nor when a gate was put in It
The reason why Mr.. Blanchard caused
his side tlume to be built, appears from
the testimony of the defendant, Doering
but neeQ not be commented on here.
Other evidence to the same effect as The
above, was offered by the defendants, b.
was. excluded.
1t Furthermore. appears from the whole
case, that no objection was taken to the
mode OF measurement, which has always
heretofore prevailed; namely, at tn
place OF discharge, until about the time thi
action was commenced, or until the yea
1864, when the defendant Doering, wa
engaged in rebuilding his grist mill which
had been destroyed by fire. The presen
plaintiffs then for the first time raised tn
objection.
Upon these facts question arises as t
the degree or kind Of acquiescencc on til
part of the proprIetors Of the dam, Q
) principal power, in the measurement Q
use Of water by the defendants, or thos
under whom they claim, which will pre-
clude the application of the equitabl
remedy by injunction, to restrain or pr
vent such measurement or use.
, The general doctrine Of courts
equity upon this subject, is we'll unde
stood. This court has had frequent occ
sions to consider it in cases of this nj
ture. Long acquiescence is a bar to tn
remedy, and especially where it Will b
s productive Of hardship and oppression, {
public OF private mischief (Sheldon '
o Rockwell, 8, Wis. 166. Cobb VS.. Smitl
S Is Wis. 661. Crosby VS.. Smith, 10 Wi
t 449. Pettibone VS.. Railway Co. "A, Wi
/! 443.) In this case there has been a
] acquiescence for nearly, if not quit,
$ twenty years. 1t does not appear that til
Y fatler of the plaintiffs, to whose riel
: they succeed, and who became the pr
prietor Of the dam in 1854, and SO CO,
tinued until the time of his death
:, 1868, ever raised the slightest objection
On the contrary, it appears that as late
J, the year 1862, he put in the side fun
at the defendants mill, with no cate
! other means for measuring tie water b
fore it reached the defendants Whee
thus consenting decidedly, SO far as an
i act Of his could show consent. to Il
|, measurement at the wheel This too WI
: at, or after the time the defendant. Doe
ing, acquired his right to the 9th,
eighty-six inches of waters by purcha
L from NJ. Blanchard himself. Could Il
father of the plaintiffs, after such acuu
: escence on, his part and on the pnrt of h
= = grantors, and after he had thus erected IL
!. fume, by which the water was conveye
q to the defendants mill, have maintained
J bill to restrain the defendant Doerin
= = from using the prescribed quantity
4 water, as it thus flowed to his wheel?
y seems clear to US that he could not, and
he could not; then the plaintiffs stand
. no better position. Again, before Il
death Of Mr.. Blanchard, and after Doe