The following opinion was filed at the June term, 1863 :
By the Court,
PAINE J.Within the rule acted on by this court in the case of Sheldon v. Rockwell, 9 Wis., 166, and Cobb v. Smith, 16 Wis., 661, the complaint in this case fails to show a sufficient ground for a court of equity to wholly abate the dam of the defendants. It shows that the dam was erected across Rock river at the city of Janesville, in 1846, and has been maintained from that time until the commencement of this suit. It fails to show any excuse or justification for the acquiescence on the part of the plaintiffs for such a length of time. Where it appears that a dam is thus erected and maintained in a stream passing through one of the most flourishing inland cities in the state, it sufficiently appears that important interests have grown up around it, to prevent a court of equity from aiding plaintiffs to abate it who have slept so long upon their rights.
Yet notwithstanding this, the complaint still shows a cause of action. It shows that the defendants are building the dam to the height of eight feet, about twice the height at which it had previously been maintained. Certainly no one could claim that an acquiescence in the flowing of lands occasioned *452by a dam four feet high, would bar the owner from objecting to an increased flowing to be caused by doubling the height of the dam. The equitable bar extends no further than the acquiescence.
The dictates of the highest benevolence may require that if a man steals our coat, we should give him our cloak also. But equity does not attempt to enforce so high a charity. It allows the owner to retain his cloak, if he insists on it, although he has failed to prosecute for the coat.
The demurrer was properly overruled. But the order for judgment must be modified so as to direct a judgment on the demurrer, restraining the defendants from erecting the dam to a height greater than that at which it had previously been maintained, with costs in favor of the appellants.
A motion for a rehearing having been granted, the cause was re-argued at the January term, 1865, by A. Hyatt Smith, one of the respondents, in person, and by Bennett, Gassoday & Gibbs, for the appellants, and was disposed of by the following opinion.
By the Court,
Dixon, O. J.When we granted the rehearing, it was our impression that the complaint showed that the dam was constructed in pursuance of the territorial act of April 1, 1843. (Laws of 1843, p. 25.) It was so stated in the printed argument in support of the motion, and not controverted in the arguments against it. We did not examine the complaint critically, but granted the motion on that ground. But now, upon more particular examination, we find that the complaint contains no such averment. In the absence of such averment we cannot assume as matter of fact that the dam was erected under the act of 1843, and that it has since been kept up under that and the amendatory acts of 1846 and 1855. Laws of 1846, p. 116; Local Laws of 1855, chap. 353. If such be the fact, it can appear only by answer.- Hence the *453questions raised and argued are not presented by tbe demurrer, and it was correctly overruled. The defendants should have answered, showing that the dam was constructed under the acts referred to, if such were the fact.
Still we think that the motion for a rehearing was properly granted, but for a somewhat different reason. Our former order directed a judgment on the demurrer, restraining the defendants from erecting the dam to a height greater than that to which it had previously been maintained. This, we think, was wrong, and that the order should have been that upon payment of the costs of demurrer and motion to that effect by the defendants, the judgment below be vacated, and the defendants have leave to answer. We think this should have been the order, because further investigation has satisfied us that the defense offered on the demurrer, and which the defendants no doubt supposed they could offer, but which we reject, is not altogether without merits. We doubt whether this action can be maintained; and in justification of our doubts may with propriety refer to the case of Hustis v. Wood, 17 Wis., 416, which seems decisive of the leading question argued here. We there held that the repeal of the general Mill Dam Law of 1840 did not affect the rights of the proprietors of a dam erected under a special act into which the provisions of the general law were incorporated by reference, and that a common law action for damages to lands flowed could not be maintained.
The demurrer must be overruled, with costs to the plaintiffs, and the cause remanded with directions that upon payment of all costs of demurrer, and application by the defendants within such reasonable time as the court below shall direct, the judgment be vacated, and the defendants have leave to answer.
Ordered accordingly.