
    Haag vs. Delorme and another.
    
      Basement — Aclvwse usm' and possession.
    
    1. Apart from the special statute on that subject, a right to flow land by-prescription can arise only from a user of such easement adverse and without interruption for the full period of twenty years.
    2. Any substantial interruption of the enjoyment within the twenty years will defeat the easement, whether such interruption is caused by a disseizin, or fraud, or by other means; though a mere temporary or accidental interruption, (as one caused by the dryness of the weather, the washing out of a dam, the necessity for repairs, etc.,) will not stop the running of a prescription, if there is no intent to abandon the easement, and the user is renewed within a reasonable time.
    3. Under ch. 84, Laws of 1862, (Tay. Stats., 818, § 42), the period of prescription is reduced to ten years.
    4. Whether a prescriptive right to flow land can be acquired under this statute where the user is not adverse, is not here decided.
    5. The statute, however, (which defines the period as “ the ten years next preceding,”) does not change the rule requiring the use to be continuous and uninterrupted during the period limited.
    6. A pleading which avers an adverse use “ for the full term of twenty years,” but does not aver that the same continued “ during the twenty (or ten) years next preceding,” but rather shows an interruption during that time, held not to show any prescriptive right.
    APPEAL from the Circuit Court for Bodge County.
    This is an action under the Mill Dam Act to recover damages for flowing lands. The answer sets up several defenses. The plaintiff interposed a demurrer to the third defense therein,, alleging as ground of demurrer, that the same does not state facts sufficient to constitute a defense to the cause of action set forth in the complaint,- The circuit court overruled such demurrer, and from tbe order' overruling tbe same tbe plaintiff has appealed.
    Sucb third defense is as follows: “ And for a separate and third defense tbe respondents show that many years before this action was commenced, one Solomon Juneau built tbe mill and mill-dam mentioned in tbe complaint; that subsequently some persons claiming tbe premises upon which said mill and mill-dam are situated, and said mill, mill-dam and tbe water power thereby created, through and under tbe said Solomon Juneau, duly mortgaged tbe same to one Jonathan D. ledgard, to secure tbe payment of a certain sum of money due by them to him, and did afterwards, and subsequent to tbe due recording of said mortgage, and while said mortgage was still wholly unpaid, and was a valid lien and encumbrance upon said premises, without the knowledge or consent of the said ledgard, enter into an agreement with the person who then owned the lands alleged in the complaint to be the property of the complainant, and under whom the complainant claims title to said lands, and with several other persons having lands overflowed by reason of said mill dam, by which said agreement, in consideration of a certain sum of money then paid to them by the said former owner of the complainant’s lands and the said other persons, they were to relinquish the said water power and to open the said mill dam for the benefit of the owners of the lands thereby overflowed or injured. And said persons so owning the said mill dam and water power, subject to the said mortgage to said led-gard, did thereupon, pursuant to such agreement, and without the knowledge or consent of the said ledgard, and in violation of his rights under the said mortgage, open the said mill dam and take down a part of the same. That subsequently the said ledgard as soon as he could lawfully do so, proceeded to foreclose his said mortgage in the United States District Court for Wisconsin, and obtained a judgment of foreclosure and sale in said court and purchased at the sale made by the United States marshal upon such judgment all of the said mortgaged premises, including tbe said mill dam and water power, at a sum not exceeding tbe claim secured to bim by said mortgage, tbe said mortgaged premises being without tbe said mill dam and water power insufficient to pay tbe said claim. That immediately thereupon tbe said Ledgard, conveyed in fee, for a valuable consideration, all of tbe said mortgaged premises to these respondents, who thereupon, within tbe shortest time possible, again erected and repaired tbe said mill dam and restored tbe said power.
    And tbe respondents allege that they, and those under whom they claimed title to and are in possession of tbe said mill,' mill dam and water power, for more than twenty years before and next^preceding tbe commencement of this action, not even including into tbe said twenty years tbe’interval in which said mill dam and water power were not used, so as herein before stated, have been in tbe actual, continued occupation of said mill, dam and water power, and have kept up 'and maintained said dam at tbe same height as at present, and used tbe same and tbe water power thereby created, for rthe purpose of propelling a mill below said dam, and have for all that time by reason of tbe erection and tbe keeping up and maintaining of said dam, caused tbe lands, alleged in tbe complaint to be tbe property of tbe complainant, to be flowed, injured and damaged as much and to as great an extent as now and as in the last three years before this action was commenced; and that they have during all said period used, enjoyed and been possessed of tbe said mill, dam and water-power, and tbe flowing of and. other injury to tbe said lands of tbe complainant, resulting there-ircm, under a 'claim of title exclusive of any other right and adversely to tbe complainant and all other persons. And tbe respondents assert that by reason of tbe said premises tbe complainant is barred from maintaining this action by tbe statute of limitation in such case made and provided.”
    
      Qillet & Taylor, for appellant.
    
      L. T: Fribert, for respondent
   LyoN, J.

The nature, qualities and duration of tbe user, or enjoyment of an easement, which, will constitute a valid right thereto by prescription, are precisely the same as are required by the statute of limitations to enable the occupants of lands to defeat the title of the true owner. An occupancy of the lands, to have this effect, must be continued, uninterrupted and adverse, for the length of time prescribed by the statute. By analogy to the general statute of limitations, and in the absence of any special statutory provision on the subject, the defendants will fail to show a right by prescription to flow the lands of the plaintiff, unless they aver and prove that they, or their grantors, have used and enjoyed such easement, adversely to the plaintiff, and without interruption, for the full period of twenty years before this action was commenced. These principles are so nearly elementary, at least they are so perfectly well settled, that it is scarcely necessary to refer to authorities to sustain them. A few cases, however, will be cited, not so much for the purpose of proving the existence of the principles, as to illustrate their application. These authorities are taken almost at random from a multitude of others to the same effect

Rooker v. Perkins, 14 Wis., 79; Cooper v. Smith, 9 Serg. & R., 26; Angell on Limitations, 385-92; Abell v. Harris, 11 Gill & Johns., 367; Brandt v. Ogden, 1 Johns, 156; Doe ex dem. Clinton v. Campbell, 10 id., 474; Postlethwaite v. Payne, 8 Ind., 104; Sargeant v. Ballard, 9 Pick., 251; Angell on Watercourses, Title “Adverse Enjoyment,” § 210-14, and cases cited; Sydnor v. Palmer, 29 Wis.

It is entirely immaterial by what means the enjoyment of the easement was interrupted, whether by disseizin, or fraud, or any other means; if there was a substantial interruption thereof, it defeated the prescription so far as the previous user is concerned. The question is not how the user was interrupted, but whether there was a time when it was in fact substantially interrupted. San Francisco v. Fulde, 37 Cal., 349. It is immaterial, also, in this case, that the grantor of the plaintiff and others paid the mortgagors for opening the dam and drawing off the water from their lands, after the execution of the mortgage to Ledgard, and that the water was so drawn off after the mortgage was executed, and without the consent or knowledge of the mortgagee, under whom the defendants claim. Under this state of facts, surely the plaintiff cannot be in any worse position, or the defendants in any better one, than they would have been in had the grantor of the plaintiff disseized such mortgagors, the latter acquiescing in such disseizin. It is well settled that the disseizin of a mortgagor operates in law as a disseizin of the mortgagee. Poignard v. Smith, 8 Pick., 272; Dadmun v. Lamson, 9 Allen, 85.

It is freely conceded that a mere temporary or accidental interruption of the user, occasioned by the dryness of the weather, the washing out of the dam, the necessity for repairs, and the like, will not stop the running of the prescription, if- there be no intent to abandon the easement, and the user thereof is resumed within a reasonable time after such temporary interruption. In such cases the steps which are immediately taken to repair or rebuild the dam, or the bolding and using of all the water there is in the stream, may well be held to be equivalent to an actual and uninterrupted flowing of the land. It is so to the extent of the ability of the mill owner. It is in fact, rather to be considered as a mere fluctuation in the extent of the user produced by uncontrollable natural causes, than as an interruption of such user which breaks its continuity and thus defeats the right thereto by prescription.

Thus far we have been considering tbe subject from tbe stand-point of tbe common law. But we have a statute relating thereto which may be applicable to this case, and which must therefore be considered. Obap. 184, Laws of 1862, enacts tbat, “No action for tbe recovery of damages for tbe flowing of lands, shall be maintained in any court in tbis state, when it shall appear tbat 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 sucb action.” Tay. Sts., 818, §42.

It may be that under the decision of this court in Hanson v. Taylor, 23 Wis. 547, which gives a construction to a very similar statute relating to highways, it should be held that a good prescriptive right to flow lands may be predicated of a user which is not adverse. On this point no opinion is here expressed. But however this may be, the law of 1862 does not abrogate the requirement of the common law, that the continual and uninterrupted user of the easement for the specified time is essential to a valid prescription. On the contrary the use therein of the words “ for the ten years next preceding,” etc., plainly shows an intent to leave the common law unchanged in this respect, for certainly it can not be truly said that the plaintiff’s lands were flowed “for the ten years next preceding” the commencement of this action, if during some portion of sucb ten years they were not flowed. The language quoted necessarily imports the whole of the term.

The defense in tbe answer to which tbe demurrer was interposed fails entirely to aver tbat tbe lands of tbe plaintiff bad •been flowed by tbe defendants or those under whom they claim, by means of their mill dam, for tbe ten years next preceding tbe commencement of tbis action, and hence it fails to show tbat tbe action is barred by tbe statute. Eor a like reason it also fails to show tbat tbe action is barred by tbe common law.

Tbe order overruling tbe demurrer to tbe third defense in tbe answer must be reversed and tbe cause must be remanded with directions to tbe circuit court to sustain sucb demurrer.

By the Court. — Ordered accordingly.  