Jan. Term, the owner of the land; and therefore, if such flowed land is 1860. FAVILLE V. GREENE. June 4. conveyed by the owner, the grantee may maintain a complaint against the mill owner for damage done by such flowing." Charles vs. The Monson & Brimfield Manuf. Co., 17 Pick., 70. By the Court, COLE, J. This was an action commenced under chapter 56, R. S., for damages sustained by the flowing of the lands of the respondent. The appellant demurred to the complaint, assigning several grounds of demurrer, which we do not deem it necessary to notice in detail. It appears to us that all the serious objections taken to the complaint, are substantially embraced in the position, that it is not alleged that the respondent was the owner of the land overflowed when the dam was erected, or that no compensation has been made for the injury caused by the flowing. An examination of the complaint clearly shows that it sets forth a good cause of action. It avers, in substance, that the respondent is now, and ever since the 4th day of June, 1855, has been the owner in fee, and actually possessed of certain lands therein described; that ever since that day, and until the present time, he has had the right to the use and profits thereof; that the appellant now, and for more than three years past, has kept up and maintained the dam which has caused the waters to flow back on the lands mentioned in the complaint, whereby he has been deprived of the use of said lands, and the same have become valueless, &c. He demands judgment, that the damages he has already sustained in the premises be assessed under the provisions of the statute, and also for compensation for all damages which may hereafter be occasioned to the premises forever, in consequence of such flowage. We do not suppose that it is essential to a complaint of this kind, to negative every possible defense which may exist to the action, and therefore, it was not necessary for the respondent to allege that no compensation had been made for the injury sustained. If compensation had been made, it was a proper matter of defense, and would properly be set up in an answer to the complaint. 1860. FAVILLE V. GREENE. Again, it is insisted that the complaint is defective because Jan. Term, it does not allege that the respondent was the owner of the land when the dam was erected. It is said, in support of this objection, that the flowing of land by the erection of a mill dam, is taking private property for public use; that the taking is complete when the land is first flowed, and that the rights of the then owner to so much land as is flowed, are thereby divested, and in lieu of the estate taken, he has a claim against the mill dam owner for compensation in the nature of a claim for purchase money; and therefore, unless the respondent was the owner of the land when it was first. overflowed, it is contended that he has sustained no injury, has had no property taken from him, and is entitled to no compensation. It does not become necessary to determine, in this case, the question as to whether the owner of land at the time it is flowed, can alone maintain an action, not only for damages already sustained, but also for damages which may subsequently accrue, after its alienation, by reason of keeping up the dam. It is very obvious that the statute has in view two objects: to give a remedy for damages already sustained, and an estimate of the damages, gross or annual, which may afterwards be incurred. In the case of Walker ts. The Oxford Woolen Manufacturing Co., 10 Met., 203, it was held, that if an owner of land that is flowed by a mill dam, sells and conveys the land before he has proceeded against the mill owner for damages, he may afterwards maintain an action under the statute, and have a jury to assess the damages caused by the flowing of the land whilst he owned it. And in Charles et al. vs. The Monson & Brimfield Manufac turing Co., 17 Pick., 70, it was held, that the former owner of a mill is liable for damages occasioned by flowing land while he was the owner of the mill, although at the time when the complaint was filed he had ceased to be the owner and occupant thereof. But in neither of the above cases did it become necessary to decide the precise question discussed upon this demurrer, namely, whether a grantee of land flowed, could maintain an action for damages sustained by him after he purchased the estate. See Hathorn vs. Stinson et al., 1 Fair 1860. DAVIS & MISSISSIPPI et al. Jan. Term, field R. (Me.,) 224; Preble vs. Reed, 5 Shep., 169. If, however, the proposition insisted upon by the counsel for the appellant be sound, that the owner of the land at the time it THE LA CROSSE is flowed, can alone recover for past and future damages, and RAILROAD CO. that his grantee takes the property subject to the easement, then it is very evident that such grantee has no right to the profits and use of the land overflowed. Here the respondent alleges, not only that he is the owner in fee, and actually possessed of the land, but further, that he is entitled to the use and profits of the same. By the demurrer it is admitted that this allegation is true, which wholly negatives and rebuts the presumption, that the respondent took the lands overflowed subject to any easement whatever. If it be true that the taking is complete when the land is first overflowed, and that the rights of the then owner to so much land as is overflowed, are thereby divested, then it is very clear, in view of the allegations of the complaint, that the respondent must have been the owner of the land when the dam was erected. But as the question as to whether a subsequent purchaser can maintain an action under the statute for damages sustained by him for keeping up a dam after he became possessed of the land overflowed, even though the damn was erected before he purchased the property, is not fairly raised by this demurrer, it will not be decided, or further noticed. We are of the opinion that the complaint set forth a good cause of action, and that the demurrer was properly overruled. The order overruling the demurrer is affirmed. DAVIS, VS. THE LA CROSSE AND MILWAUKEE RAILROAD A complaint, filed in November, 1858, against a railroad company and its lessee, alleged that the defendants had taken and appropriated for the road-bed 1860. DAVIS et al. V. and other uses of said company, certain real estate of the plaintiff (who was Jan. Term, a resident of Wisconsin) without his consent, and had failed, for more than six months after such taking and appropriation, to pay to the plaintiff any compensation therefor, or to take any steps to have the amount of compensation due him therefor assessed; and demanded that the damages to said land, THE LA CROSSE caused by the use and occupation thereof by the defendants, should be as& MISSISSIPPI RAILROAD Co. sessed, and said railroad company be adjudged to make compensation to the plaintiff for such damages, and that in the meantime and until such compensation were made, the defendants should be enjoined from running cars over said land: Held, that the complaint did not contemplate a recovery of damages as for a trespass quare clausum fregit, but the assessment of a compensation for the land so taken; and a judgment rendered in such action for damages as for a trespass upon the plaintiff's land, was erroneous: Held also, that such judgment could not be permitted to stand as a compensation for the land taken, it appearing from the pleadings, that there were divers persons holding mortgages upon said land, who had not been made parties to the suit, but were necessary parties in any proceeding to obtain such compensation: Held further, that upon the case presented in the complaint, the plaintiff was entitled, under the statute of 1858, to an injunctional order, restraining the said company and all claiming under it, from running cars or locomotives upon said land of the plaintiff, or using the same in any manner, until such compensation, together with costs, &c., should be paid to the person entitled thereto. APPEAL from the Circuit Court of Columbia County. The complaint of Davis, the plaintiff below, which was filed in November, 1858, alleged that he was a resident of the state of Wisconsin: that during the summer and fall of 1856, and the following winter and spring, the La Crosse and Milwaukee Railroad Company entered upon certain real estate, of which the plaintiff was seized in fee, of the value of $5000, being lots 3 and 14 in block 3, in D. H. & T.'s addition to the city of Portage, and eleven acres adjacent (particularly described), and located their railroad through said property, using a strip off of said lots, and a strip of land, one hundred feet wide, through said eleven acres, for the purpose of grading and laying their track, and at the same time, without any certificate in writing of the chief engineer, signed by him and recorded in the office of the register of deeds of the county, taking and occupying the whole of said lots, and portions of said eleven acres, beyond the limits of one hundred feet in width, for the purpose of side tracks, &c., and carrying away therefrom large quantities of earth, rock, &c., whereby they destroyed the value of said lands, and caused the plaintiff damage to the amount of $5000; VOL. XII-2 Jan. Term, that said railroad company, and the defendant Chamberlain, who has held said road as lessee of the company since Sep .1860. DAVIS V. & MISSISSIPPI et al. tember, 1857, still continued to use said land for said railroad THE LA CROSSE track; that said railroad company was insolvent; that when RAILROAD CO. said company first entered upon said land, he hoped they would, in a reasonable time, pay him the damages sustained by him in the premises, and he had frequently since applied to them to do so, but they had always refused to pay the same, notwithstanding they had, for about eighteen months, taken and appropriated said land, by making and laying their track thereon, and taking therefrom earth, &c., and during all that time had been running trains of cars and locomotives over the same, and still continued to do so. The complaint also stated that said railroad company had never, before or after they entered upon said land, offered to pay the plaintiff for the same, nor had they ever made or offered to make any agreement with him as to the value of said land, and compensation therefor, or taken any steps to ascertain the damages of the plaintiff, or the value of said land at the time it was so taken, or at any other time, but had taken the said land for their own use, and the use of the said lessee, without making or offering to make, and as plaintiff believed, without intention to make any compensation therefor; wherefore the plaintiff demanded, that the damages to his said lands, caused by the use and occupation thereof by the said railroad company and the defendant Chamberlain, be ascertained or assessed, and that said railroad company might be adjudged to make compensation to the plaintiff, for such damages; and that in the meantime, and until such compensation were made, and the costs and all reasonable charges in this action were paid, the said railroad company and their agents and the said Chamberlain and his agents, might be enjoined, and restrained, by an injunctional order of the court, from running cars or locomotives on the said real estate of the plaintiff, and from using said real estate in any manner for the purposes of the said railroad company or their said lessee, and that the plaintiff might have such other relief as his case should require. The complaint was verified. After service of the complaint, the Milwaukee and Minne |