I. The principal errors assigned relate to the sufficiency of the answer. The defendants deny therein that the lands of the plaintiff are flowed by means of their mill dam, and then proceed to aver that if thd lands are thus flowed, the statutes of limitation have run against the plaintiff’s right to maintain an action therefor. It is claimed, on behalf of the plaintiff, that this hypothetical mode of pleading is bad, and hence, that the statutes of limitation are not well pleaded. .
In the original act in relation to mills and mill dams, enacted in 1840, repealed by the revision of Í849, and reenacted in 1857, sec. 9 was as follows: “ If any plea is filed by the respondent, the replication and other pleadings, and the trial of the issue, whether of law or of fact, shall be conducted in like manner as in actions at the common law." Laws of 1857, ch. 62. But in the revised statutes of 1858, ch. 56, that section was amended to read thus: “ If any answer is filed by the respondent, the reply and all other proceedings shall be conducted in like manner as in civil actions." We think the object of the amendment was to place the pleadings and all -proceedings under the act on the same footing as civil actions where no different provision is made in the act itself. Hence we áre of the opinion that the pleadings in this and similar actions are to be construed by the liberal rules of the code, and not by the strict rules of the common law. Indeed, were sec. 9 entirely omitted from the act, I should have but little diffi culty in reaching the same conclusion.
*340That the hypothetical mode of pleading here adopted may be resorted to in civil actions, since the adoption of the code (if not before), has been settled in this state by the cases of Willard v. Giles, 24 Wis., 319, and Grace v. Newbre, 31 id., 19. Oases may arise where a party will be held to have absolute knowledge whether a given statement or proposition of fact is true or false, and he may be required to admit or deny the same; but this is not a case of that description. Hence, without stopping to inquire what was the rule at common law, it must be held in this case that the statutes of limitation were well pleaded, and that the testimony tending to prove those defenses was properly admitted.
II. Another objection taken to the answer is, that it is denied therein that the plaintiff’s land is injured by means of the mill dam of the defendants, while the statute (R. S., ch. 56, sec. 8) prohibits such denial. This objection does not seem to have been made at the trial. Had a motion been made in the circuit court to strike out such denial, probably it should have been granted.. But that would not prevent the defendants from litigating the question as to whether their dam caused an injury to the plaintiff’s land. It maj^ be that the plaintiff would have been entitled, had he demanded it, to have this question submitted to a second jury, pursuant to sec, 11 of the act, after the other issues had been tried and determined in his favor. But be made no such demand, and the question was properly submitted to and determined by the jury impaneled to try the other issues. It was substantially so held in Kearns v. Thomas, 37 Wis., 118, where some discussion will be found bearing upon a portion of the questions here involved,
III. Most, if not all, of the material objections taken on behalf of the plaintiff to the admission of testimony, were taken on the theory that the defenses of the statutes of limitation were insufficiently pleaded. Holding that those defenses were well pleaded, we must also hold that the testimony tending to prove them was properly received. And for the same reason *341it must also be lield that the learned circuit judge properly refused to instruct the jury that “ the plea of the statute of limitations by the defendants is not good or available to the defendants in this action.” It is certainly a good plea as to the alleged flowing of all the plaintiff’s land described in the complaint, except the parcel purchased by him of the state.
IY. The judge refused to give the following instruction, prayed on behalf of the plaintiff: “ The mill dam being across a public navigable stream, in order to justify the defendants in maintaining the dam, they must show that they are authorized by an act of the legislature so to do; the defendants have not done so, and you must find for the plaintiff.” Such refusal is assigned as error. In view of the facts that the action was brought under the mill-dam law, and is not a common-law action for an unauthorized flowing; and in view of the further facts that it is stated in the complaint that the defendants are the owners of the mill dam in question, and that the same was erected and is maintained under the act of 1842, which malees its owners subject to the act of 1840 in relation to mills and mill dams, —we can hardly think that the learned counsel for the plaintiff rely upon this assignment of error as one fatal to the judgment. It seems to us that the proposed instruction was properly refused.
Y. "We learn from the briefs that a motion was made by the plaintiff for a change of the place of trial, for the alleged reason that an impartial trial could not be had in the county in which the action was pending; that affidavits were read on the hearing thereof ; and that the motion was denied. This ruling, it is claimed, was erroneous. We find nothing on the subject in the printed abstract of the case, or in the record returned to this court, except that the alleged denial of the motion is stated as 'a reason why a new trial should be granted. In this state of the record we cannot determine whether the motion,, if made, should have been granted or denied.
This disposes of all the alleged errors which are deemed *342material, adversely to the plaintiff, and brings us to the conclusion that the judgment of the circuit court should be affirmed.
By the Court. —Judgment affirmed.
Ryan, C. J., took no partin the decision of this cause.