State ex rel. Flint vs. The Common Council of Fond du Lac. Chas. E. Shepard, for the relator, contended, 1. That the order was not appealable. It did not deny a substantial right, nor involve the merits. Tay. Stats., 1635, § 11; Ruhn v. Gunnison, 12 Wis., 528; Johnston v. Reiley, 24 id., 494. The order was discretionary, the court having a right to require the matter of the motion to be presented in a more formal manner. 2. That before the return of the writ, the motion should be to supersede, and not to quash it. 1 Tidd's Pr., *403; 2 Burrill's Pr., 250; Graham's Pr., 557; Ferguson v. Jones, 12 Wend., 241; Ball v. Warren, 16 How. Pr., 379; 1 Hill, 197. As the writ was directed to the council and not to the sheriff, the return of service made by the latter was not a "return of the writ." Process cannot be returned so as to take effect previous to the return day. Sawyer v. Wood, 18 Wend., 631-2. Counsel then argued at length the objections to the writ specified in the motion to quash. DIXON, C. J. The writ of certiorari had not been served in the manner required by law, and therefore the motion to quash. appears to have been irregular. Service of the writ is made by delivering the writ itself, not a copy, to the judge or other officer of the inferior court or tribunal to whom the writ is directed. Such is the practice at common law, and such the practice which has always prevailed in this state. 2 Arch. Pr., 720; 1 Tidd's Pr., 404. The service here was by copy delivered to and left with the mayor, which was insufficient, and upon which the defendants cannot be compelled to make re turn. If the defendants make voluntary return, that may suffice and constitute a waiver of the objection. 1 Tidd, 403. If, however, they object to make a return, and wish to take advantage of the informality or insufficiency of the service, and to have the judgment of the court upon it, their remedy would seem to be by motion to supersede the writ because of the defective service. Ib. State ex rel. Flint vs. The Common Council of Fond du Lac. "If the writ be misdirected, or otherwise bad in point of law, the court will order it to be quashed, if before them; or, if not returned, will grant a supersedeas. But the court cannot quash a writ that is not before them." 1 Tidd, 403. If the writ could be regarded as before the court so that the motion to quash was proper, the sheriff having brought back the writ with his certificate of supposed service indorsed, still the motion was not made on such ground or because the writ had not been served as required by law. It is probable, if such objection had been taken, that the court would have directed the proper service. But whatever may have been the defects in the writ or the service, they are in strictness not questions before us for consideration at this time. The foregoing remarks have been made rather for the purpose of pointing the way to correct practice in the future in the action, than because they were deemed necessary to a decision of this appeal. The court is of opinion that the order in question is not appealable, and that the appeal must be dismissed. An examination of the statute (2 Tay. Stats., 1635, §.11) will show that it is not one of those orders from which an appeal is given to this court. It may be proper also to remark that the case of Seifert v. Brooks, decided at the present term (34 Wis., 443), will be found to have settled some important points touching the merits of the controversy, out of which this proceeding by common law certiorari seems to have arisen. By the Court. Appeal dismissed. - Arimond vs. Green Bay & Mississippi Canal Company. ARIMOND VS. GREEN BAY & MISSISSIPPI CANAL COM PANY. MILL DAMS. (1) No defense to action for flowage of lands, that defendant's dam and another caused flowage. (2) Mill-dam act strictly construed. (3) Dam to improve navigation, not a mill-dam. (4) Act of legislature construed. EASEMENT. (5) Prescriptive right to flow land rests on twenty years' user. (6) Former decision reaffirmed. 1. In an action for the flowage of plaintiff's land, alleged to be caused by the erection and maintenance of defendant's dam across one branch of the outlet of lake Winnebago, so as to raise the waters of the lake, the answer alleged that another dam, two feet higher than that of the defendant, had been subsequently erected across the other branch of said outlet; that the two dams were erected and maintained by dif ferent parties, acting separately; and that both dams, acting together, set back the water on plaintiff's land, and neither would have done it separately. Held, that these facts constitute no defense. 2. Ch. 184, Laws of 1862, applies in terms only to “mill dams," and must be strictly construed. 3. It appearing from the answer that the dam here in question is main. tained by the defendant company as an "integral part" of its works constructed to improve the navigation of the Fox river, the facts that it was originally erected, by defendant's assignors, as a mill dam, and that the power created by it is still employed to propel flouring or lumber mills, do not make it a "mill dam" within the meaning of the act of 1862. 4. The act of the territorial legislature authorizing certain persons to construct a dam across the northern outlet of lake Winnebago (Terr. Laws of 1848, p. 129), did not empower them to erect a dam which should raise the waters of said lake above their natural level. 5. A plea of prescription for an easement to flow lands must show an adverse user for twenty years, and not for ten years only: and this rule applies where such flowage is caused by the maintenance of a dam across a navigable stream to improve the navigation thereof, under a grant of power from the legislature. 6. The doctrines held on a former appeal in this cause (31 Wis., 316), reaffirmed. APPEAL from the Circuit Court for Fond du Lac County. Arimond vs. Green Bay & Mississippi Canal Company. Action to recover damages for the flowage of plaintiff's land, alleged to have been caused by the erection and maintenance of defendant's dam across the north channel of the outlet of Lake Winnebago. After an order sustaining a demurrer to defendant's amended answer had been affirmed by this court, on appeal (31 Wis., 316), the case was remitted to the circuit court, where defendant again amended its answer, and plaintiff demurred to the second, fourth, fifth and sixth defenses set up in the answer as so amended. The second defense was, that a certain other dam similar to that of defendant, and two feet higher, had been, by other parties acting independently of defendant, erected subsequent to the erection of defendant's dam, and ever since maintained, across the south channel of the outlet of said lake; that the two dams together caused the flowage, and that neither of them would have caused it separately. For a fourth defense it was alleged that by an act of the territorial legislature of March 10, 1848, Curtis Reed and his associates were authorized to erect the dam in question, which they began doing; that under and by a subsequent act of the then state of Wisconsin, August 8, 1848, entitled "an act to provide for the improvement of the Fox and Wisconsin rivers and connecting the same by canal," a board of public works of five persons was organized, which board completed the dam by agreement with Reed and his associates, who released all their right, title and interest therein to the Fox and Wisconsin River Improvement Company; that the dam was completed to its present height more than ten years prior to the commencement of this action; that defendant is duly incorporated, and became duly seized by conveyance of the Fox and Wisconsin River Improvement, including the dam, by title from Reed and his associates and the state, through the Fox and Wisconsin River Improvement Company; that "said dam was and is a mill dam and also an integral part of said works of improvement," and defendant and its grantors had been in adverse possession of plaintiff's land by flowing the same for more Arimond vs. Green Bay & Mississippi Canal Company. than ten years before this suit. The fifth defense was, that the dam, ever since its construction, had been and was a mill dam, and also a part of the Fox and Wisconsin River Improvement; that it was built in part for the purpose of being used as a mill dam in connection with water grist and flouring mills, and water lumber mills, in the performance of custom work; and that immediately after its erection such mills were built in great number, and had ever since been operated by means of said dam. The sixth defense contained the same allegations as the second, with regard to the injury being caused by the erection of another dam, and also alleged, among other things, that the Fox and Wisconsin were navigable rivers and public highways, and that the dam was maintained as a part of the works of improvement of their navigability. Plaintiff's demurrer to these defenses was sustained; and defendant appealed from the order. Sloan, Stevens & Morris, for appellant, contended that the injury to plaintiff's land resulted wholly from the erection of the second dam, since defendant's dam had produced no such result. It follows that those who erected the dam subsequently built, are liable to plaintiff for the injury which resulted directly from their acts. This question is virtually decided in Lull vs. Fox and Wisconsin Imp. Co., 19 Wis., 106, where the question of this joint liability was involved. Upon the fourth defense, counsel contended that defendant was in adverse possession of the easement of flowage, under a claim of right founded upon a written instrument, the act of the legislature of 1853 conveying the works of improvement on the Fox and Wisconsin rivers to the "Fox and Wisconsin Improvement Company," defendant's grantors, being a written instrument within the meaning of the term as used in the statute defining adverse possession. The question then is, whether, defendant having been in the adverse possession and enjoyment of plaintiff's land by flowage for ten years prior to this action, under a claim of right. founded on a written instrument, the action is barred by the |