Smeaton v. Austin

WiNsiow, J. The first and most serious question presented is whether the plaintiffs are entitled to take any appeal from the award of the appraisers. When the ditch was opened in 1882 the statute gave no appeal, and it was not until the passage of ch. 46, Laws of 1885, that an appeal to the circuit court was provided for. It is argued by appellants that when the act complained of was committed the town had a right to have the question of damages finally decided by a tribunal of its own selection; that this was a vested right; that the statute above cited was not retroactive in its terms nor merely remedial, and consequently that these plaintiffs could acquire no new rights under it. It is not claimed that the plaintiffs’ right to have appraisers appointed had expired or been lost prior to the passage of the law providing for an appeal; nor do we think that such a claim could be sustained. Sec. 1231, R. S., limits no time within which the application for appointment of appraisers must be made. Furthermore, the judgment awarding a peremptory writ of mandamus is a determination that the right to have appraisers appointed existed even as late as 1887, which is res adyudieata in this case. Therefore, when ch. 46, Laws of 1885, was passed, the plaintiffs still possessed a remedy for the recovery of damages arising from the digging of the ditch. It is clear that they had a remedy, and it seems equally clear that the act of 1885 simply amplified that remedy and made it inore perfect. It interfered with no vested rights. It is only after existing remedies have been exhausted, and rights have become permanently vested, that interference with the mere remedy is prohibited. Davis v. Menasha, 21 Wis. 497; Rosenthal v. Wehe, 58 Wis. 621. It is a remedial statute, affording new means of enforcing an existing obligation. Klaus v. Green Bay, 34 Wis. 629. [80] Error is assigned because the court struck out the defendants’ answer. Defendants’ counsel admits that the court permitted them to show all that they set up in their answer. Under these circumstances the ruling becomes immaterial. The court refused to allow defendants to show that the ditch was not enlarged when it was cleaned out in 1882, and this ruling is complained of. The ruling seems to have been strictly correct. The only object of the testimony seems to have been to litigate over again the question of the identity of the ditch of 1863 and the ditch of 1882. This question had been finally disposed of by the verdict of the jury and the judgment' thereon in the mandamus proceedings, by which it was established that the last ditch was an independent -and separate ditch. The witness Powrie was not permitted to answer the question whether, in his judgment, the ditch was dug any deeper than was necessary to drain the Stillwell land. This question was not at all in issue. Whether deep enough to drain the Stillwell land or not made no difference with the right of the plaintiffs to damages, or the amount thereof. Nor did it appear that the witness had any "knowledge upon which he could form a judgment on the subject. It is claimed that there was no evidence to show that the plaintiffs had suffered material damage. The record shows some evidence on the point; and, even if it did not, there is no certificate or stipulation that the bill of exceptions contains all of the evidence. The objection cannot prevail. No other errors are complained of. By the Court.— Judgment affirmed.