Sabine vs. Johnson and others. property. On these facts, two propositions were submitted on behalf of the defendants, the last of them being submitted only in the contingency that the first should be overruled. These propositions were: 1. That by conveying the mill property and water power while he owned the land in question, the right to flow such land to the extent that the same would be flowed were the dam raised to the full height authorized by law, passed as appurtenant to the mill property; or 2. That the right to flow such lands to the extent that they were flowed when Wing conveyed such mill property, so passed to the grantee. The court refused to give either of the these propositions to the jury. The first is not a correct statement of the law, as is abundantly proved by the cases cited on behalf of both parties. The last proposition is doubtless good law. It is well settled that if a person own a mill dam and water power, and also lands flowed by means of such dam, and he first convey to A. the mill dam and water power, and afterwards convey to B. the lands so flowed, neither the grantor nor B. can maintain an action to recover damages for such flowing, for the reason that the right to flow such lands to the extent they were flowed when the mill property was conveyed, passed by the conveyance, as appurtenant thereto. But if the flowage be increased by means of the dam after the conveyance of the mill property, the owner of the lands may have his action for the damage caused by such increased flowage. But the averment in the answers is, that the flowage was uniform for more than twenty years next preceding the commencement of the action; and there is no testimony whatever tending to show that the dam raised the water higher in 1855, when Wing conveyed the last of his interest in the mill property, than it did in 1868, when the plaintiff became the owner of the ten acres to which the damages for flowing were restricted by the court. The plaintiff was only permitted to recover for the damages caused by the increased flowage of the ten acres after he bought it in 1868, and it is clear that the right Bryant vs. Small and another. to increase the flowage beyond what it was when the plaintiff bought the land, did not pass by the conveyance of the mill property by Wing. Hence the second proposition above men. tioned, although good law, was entirely immaterial as applied to the facts of this case, and it was not error to refuse to give it to the jury. 11. It was strongly controverted on the trial, and also in the oral and printed arguments of counsel for the defendants, in this court, that there had been any increase in the flowage of the ten acres in question, by means of the defendant's mill dam, after the plaintiff became the owner of the land and before this proceeding was commenced. However the testimony may preponderate on this question, it must be conceded that there is testimony tending to show such increased flowage during that period; and although, were we deciding this question of fact, we might disagree with the jury, we have no power to disturb their verdict merely because, had we been jurors, in the case, we should have found the fact differently on the testimony. But we must not be understood as intimating that the jury ought to have reached the opposite conclusion. We express no opinion on the subject. It is believed that the foregoing observations dispose of all the material questions presented for our determination by this appeal. And inasmuch as we find no fatal error in the proceedings in the circuit court, it follows that the judgment of that court must be affirmed. By the Court.-It is so ordered. BRYANT VS. SMALL and another. MECHANICS' LIEN: BANKRUPTCY. (1) How lien may be lost. (2) Effect on lien of proceedings in bankruptcy. 1. While the lien of mechanics, etc., is created by virtue of the statute and of the performance of the labor or furnishing of the materials, it may Bryant vs. Small and another. be lost by an omission of the steps required by the statute for its enforcement. 2. After the labor was performed and materials furnished for which plaintiff claims a lien, and before the petition was filed, the owner of the building was declared a bankrupt in the U. S. district court for the eastern district of Wisconsin, and a trustee in bankruptcy was appointed. Afterwards this action was commenced (within the period prescribed by the statute), in a circuit court of this state, against the debtor and the trustee in bankruptcy, to enforce the lien. Held, that the circuit court should not dismiss the action, but should order it to be continued to await the action of the district court in the bankruptcy proceedings; it being uncertain whether that court will hold that it can enforce such a lien unless it be kept alive by petition and action pursuant to the statute of this state. APPEAL from the Circuit Court for Milwaukee County. This was a mechanic's lien proceeding under the statute. The circuit court dismissed the complaint for want of jurisdiction, because of the pendency of proceedings in bankruptcy against the owner of the building; and plaintiff appealed. The facts appear in the opinion. Mariner, Smith & Ordway, for appellant, argued that this was purely a statutory action, and the remedy must be taken upon the terms of the statute, or not at all. Arnet v. Milwaukee Mechanics' Mut. Ins. Co., 22 Wis., 516, and cases there cited; Clifton v. Foster, 3 Bankr. R., 162; S C., 103 Mass., 233. The district court could not entertain the petition for the lien, nor pass upon it directly in an original action brought to enforce it. And while it is possible that it might by order draw the case to it through injunction, as in the case of the Kerosene Oil Co.. 3 Bankr. R., 31, it has not attempted so to do. In re Sacchi, 4 Chicago Legal News, 289. It is not denied that the amount is due, and that it ought to be adjudged a lien. Why should not the state court proceed to the adjudication? It is the usual practice. Norton's Assignee v. Boyd, 3 How., 434; In re Bowie, Bump on Bankruptcy (6th edition), 186. It was absolutely necessary to file the petition and to commence the suit, in order to prevent the lien from lapsing. If the trustee Bryant vs. Small and another. desired the interference peared and asked it. missing the complaint. of the district court, he could have ap There is, therefore, no ground for dis Finches, Lynde & Miller, contra, contended that the jurisdic tion of the bankrupt court was exclusive, and the state court could entertain no jurisdiction in any matters arising under the bankrupt law. Bingham, assignee, v. Claflin, 31 Wis., 607; Bump on Bankruptcy (6th ed.), 185. The appellant has a complete remedy, under and by virtue of the provisions of the bankrupt law, in the bankrupt court. That court can protect all parties, and is the only court which can do equal justice to all. The state court has no power to do anything but ascer tain the amount of the lien as between the appellant and bankrupt. The district court can order the property sold, and the proceeds first applied to discharge the lien. It can ascer tain whether there is any, and what amount due appellant, and whether or not it is a lien, and order the property sold subject to this lien. The argument that a mechanic's lien is a statutory proceeding, to be enforced only in a particular way and in strict accordance with the statute, must fail in view of the jurisdiction conferred upon the bankrupt court, and in view of the decisions of the United States supreme court, in Payne v. Hook, 7 Wall., 425, and Railway Company v. Whitton, 13 Wall., 270. These cases clearly establish the doctrine that because the state has given a right of action, in special cases, in a particular named court, the federal court can not be ousted of its jurisdiction in a case where that jurisdiction would otherwise clearly exist. COLE, J. This action was commenced to enforce a mechanic's lien. The complaint states that the labor was performed and the materials furnished for which the lien is sought, between the 12th of November, 1872, and the 13th of March, 1873. The petition for the lien was filed in the clerk's office on the 2d of May, 1873, and this action was instituted within Bryant vs. Small and another. the time prescribed by the statute. It further appears that the owner of the building was upon his petition adjudicated a bankrupt in the district court for the eastern district of Wisconsin, on the 15th of March, 1873, and that afterwards such proceedings were had that the defendant, Benj. K. Miller was appointed trustee in bankruptcy for him and of his estate, pursuant to the provisions of section 43 of the bankrupt law, and has entered upon the duties of his office. The defendants failed to answer, and thereupon the plaintiff moved for judg ment on the complaint. This was objected to by the defendants, on the ground that upon the allegations of the complaint it appeared that the bankrupt court had exclusive jurisdiction of the lien proceeding; and the circuit court, sustaining this view, denied the motion for judgment, and dismissed the complaint for want of jurisdiction. The correctness of this order or judgment is the only question to be considered. It is claimed by the defendants that the plaintiff has a full and complete remedy in the district court, under the provisions. of the bankrupt law, for the protection and enforcement of his lien, and that he should apply to that court for relief. It is possible that the jurisdiction of the district court under the first section of the bankrupt law would be held to extend "to the ascertainment and liquidation of " this lien, and that it would be enforced in that court upon the facts stated in the complaint, without any petition being filed or suit instituted in the state court to preserve and continue it. This seems to be the view taken of the bankrupt law by the learned judge of the western district in the cases of In re Cook et al., 3 Bissell, 116, and In re Hoyt, id., 436. In the absence of a decision of the district court where the bankrupt proceeding is pending, we cannot assume that such would be its construction of the bankrupt law. That court might possibly hold that the petition must be filed and the suit commenced in the state court within the time fixed by the statute, in order to continue and enforce the lien. This court has held |