Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1891-05-07
RIGHT To MAINTAIN -PREsCRIPTION-
OBSERVATION-DISCLOSURES.

I1NCI W al lSldHu WHICH,, Will TIC N6Sb-
ern bank of the river, belonged to de-
PENDANT, the allegations of the complaint
that plaintiff for more than 20 years i'm
to-wit, for 40 years thereafter, contin-
uously and uninterruptedly maintained
said dam, at the same height, AUDITING
the same on said island at the same
point, with the full knowledge Of those
claiming adverse interests in said island
and westerly shore. and against the in
terestS of such claimants or owners,
under q claim of right SO to do, show
with sufficient CIearness that one of
plaintiffs claims is title by prescription.
2. The construction of the dam abut-
ting on the island, and its maintenance
and possession by plaintiff for 20 years,
is evidence that the entry was adverse.
3. The fact that ] portion of the dam
was across navigable stream raises no
presumption that PLAINTIFF possession
was permissiye on the part Of defend
ant.
Appeal from circuit court,
Waukesha county; A. SCOTT
SLOAN, Judge.
GmdHer G. Gaynor and Da7Td
S. Ordagay for appellant. George
L. Williams, for respondent.
COLE, c. J. In considering this
case one should not lose sight Of
the fact that it is an equitable &C
ton, and that mere technical legal
objections must Weld to substantial
equitable rights. The Plaintiff,
and those under whom it claims,
have for nearly 40 years been in
possession Of the premises in dis
pute, have built and repaired the
dam, frequently, have made valu-
able improvements, and invested
large sums of money in utilizing a
Water-poWer, created by the dam,
without any objection or warning
therefrom, by the defendant, or by
those under whom she claimed
title. These facts constitute a
very strong ground for equitable
relief, if it can be given consistently
with settled principles of law,
Lache5 Or delay in asserting or
enforcing a right, while a party
has knowledge Of the facts, will
often operate to bar a remedy
which is discretionary with q court
Of equity to grant or Withhold.
When this case was before the
court on the appeal from the order
granting preliminary injunction,
it was said by Mr.. Justice Taylor,
in the opinion, go n. W. Rep.
32D, that, upon the facts stated in
the complaint, the plaintiff had
fair grounds for claiming that it
had the right to maintain its dam
in the place where it had been
maintained for more than 20 years,
before it was destroyed by the de
PENDANT, upon two grounds: (I)
Under the grant of the legislature,
in I847, as a successor to the rights
of Miner & Clinton, the donees in
such grant; and ~ under the stat
ute Of limitations. On the final
trial and hearing Of the cause upon
the merits, the learned circuit court
found in favor of the plaintiff S
claim, upon both these grounds,
and granted perpetual Injunction
restraining the defendant from inter
fereing with its rights, as therein
defined. We shall not attempt to
determine the rights of the plaintiff
upon the first ground, but shall
rest our decision upon the second,
namely, adverse possessions for
more than 2Oyears, without regard
to the rights which it may have
acquired under the acts of the leg
isIature. We think the plaintiffs
claim, that it has a right to main
tain the dam in question, at the
height and in the manner it had
maintained it, is clearly established
by prescription. The learned
council for the defendant intimates
that the right to maintain the dam,
acquired by prescription, is not
distinctly relied on in the COM
plant, and therefore that the de-
PENDANT should not now be forced
to meet that issue. But, that the
complaint does not rely upon ad-
verse possession as one ground of
relief is apparent from this aver
ment alone; and the plaintiff
further alleges that those under
whom it claims and has title 70
said premises, water-power, and
dam, for more than twenty
year Immediately succeeding the
year of I847, to-wit, for forty years
thereafter, continuously and unin-
terruptedly kept up and maintained
said dam across the main channel
of SAID river, abutting the same on
said 'Nine-Acre Island at the
same point, and uninterruptedly
flooded, during all said period, the
lands above described, as fully and
10 IS great an extent as they were