Chaffee v. Conway, 125 Wis. 77. the agreement made between the parties in 1894 by which defendant took possession of the farm, collected rents, disbursed for plaintiff's benefit amounts as found by the court for taxes, insurance, and other items incident to the possession and the control of the farm up to the time of the sale in March, 1902, and, after reimbursing himself for the money so paid and the amounts advanced for plaintiff prior to and under this agreement, was to turn over the balance to plaintiff. Somervaill v. McDermott, 116 Wis. 504, 93 N. W. 553; Mechem, Agency, § 534; Marvin v. Brooks, 94 N. Y. 71; Halsted v. Rabb, 8 Port. 63; Dallas Co. v. Timberlake, 54 Ala. 403; Taylor v. Tompkins, 2 Heisk. 89; Thornton v. Thornton, 31 Grat. 212; Makepeace v. Rogers, 4 De G., J. & S. 649. It appears that the trial court, in construing the issues involved, held that they were cognizable in equity upon the ground that the parties stood related as mortgagor and mortgagee in equity. This, however, in no way altered the subject of inquiry as to the accounting, which fully covered and included all the mutual claims arising out of the transactions. The conclusion above stated renders the discussion of the exceptions as to the admission of evidence under the complaint as one for redemption by an equitable mortgagor and the establishment of a trust by parol evidence immaterial because not involved in the action. It is contended that the cause of action is barred by the statute. This is without foundation in this view of the case. The cause of action sued on under the agreement did not arise until the farm was sold in March, 1902, and suit was commenced shortly thereafter. It is urged that this agreement is too vague and uncertain to furnish a basis for a recovery. The terms of the agreement, as supported by the evidence and found by the court, are manifestly so clear and definite that no obscurity or un VOL. 125-6 Neumeister v. Goddard, 125 Wis. 82. certainty can be asserted in respect to them, and they fulfil all the essentials of an express and valid agreement in this respect. The only other question presented is the refusal of the court to allow compensation to defendant for services rendered under the agreement. The only proof on the subject is defendant's statement that the time spent in work and supervision of the farm was reasonably worth $50 per year. There is no attempt to specify any items of service or what time was in fact spent in such supervision. The evidence on this subject is too indefinite to warrant any interference with the conclusion of the trial court. It does appear that the court allowed defendant $100 as compensation for making the sale. It does not appear that the parties contemplated that defendant should receive any other compensation aside from what the court allowed him, nor has defendant shown any ground from which it can be implied that he was to be compensated as he now claims. By the Court. The judgment is affirmed. NEUMEISTER, Respondent, vs. GODDARD, Appellant. Boundaries: Deeds: Reference to a plat: Evidence of actual location: 1. Where lands are conveyed according to a plat, such plat, with its notes, lines, descriptions, and landmarks, becomes as much a part of the deed of conveyance and as controlling as if such descriptive features were written out on the face of the deed. 2. In such case reference in the deed to the plat does not preclude evidence by a surveyor, or any one else, to show where the Neumeister v. Goddard, 125 Wis. 82. lines or boundaries actually lie or fall upon the land so attempted to be described. 3. In an action for injuries to land caused by the construction of a ditch, whereby the waters of a stream were alleged to have been diverted and caused to flow onto plaintiff's adjoining land, one of the questions was, whether the ditch, or any part of it, was constructed on plaintiff's land. In its charge to the jury the court, after giving the foregoing propositions, in substance instructed the jury that, in order to determine whether any part of the ditch was on plaintiff's land, all the evidence should be considered not only defendant's deed and accompanying plat taken together, but the evidence of the surveyors, parties, and witnesses as to whether this ditch was wholly upon defendant's land or partly upon the land of each party; and that if they believed, under all the evidence, that part of the ditch was on plaintiff's land, or that the dirt was thrown therefrom upon some of plaintiff's land, then the defendant was liable for the actual injury by cutting that particular land of plaintiff and building the ditch upon a portion of it, provided they should believe that this ditch was dug or placed there without the consent, license, or permission of the plaintiff; that, in so charging, the court had reference to damage or injury to the plaintiff at this particular point, and then only upon condition that they should first find that a portion of the ditch was upon the plaintiff's land without consent, license, or permission. Held, that there was therein no error prejudicial to defendant. 4. In such case the evidence, stated in the opinion, is held sufficient to require submission to the jury of the question whether the ditch, or some part of it, was located on plaintiff's land. 5. Suggestions by the court during the taking of the testimony, erroneous and inconsistent with the charge to the jury, are held eliminated by the instructions actually given to the jury. 6. An action by a wife to recover damages for constructing a ditch upon her land is not to be defeated merely by a parol license given by the husband four years previously, and more than two months before she acquired title. 7. In an action for injuries to land caused by the construction of a ditch or dike, whereby the waters of a stream were alleged to have been diverted and caused to flow upon plaintiff's adjoining land, the court charged the jury, among other things, in substance, that, if they found from the evidence that the ditch or dike was wholly upon defendant's land, then they should determine whether the defendant had kept and maintained the same, from time to time, prior to the commencement of the action, so as to prevent the waters of the stream from coming upon plaintiff's Neumeister v. Goddard, 125 Wis. 82. land; that under the law the defendant was bound to see, from time to time, either that the ditch or dike, or the dike and ditch combined, were sufficient to carry away the water, so as not to come upon plaintiff's land under all ordinary circumstances and conditions; and refused to instruct: "If the defendant dug the channel on his own lands there can be no recovery except the defendant has been guilty of some negligent act to which the plaintiff has not actually or impliedly consented," and "If the ditch was on defendant's land, and he used reasonable and ordinary care to guard against injury to plaintiff, he is not liable. If the embankment washed out from natural causes the defendant could not reasonably have foreseen and guarded against, he is not liable if the dike was on his own land." Held: (1) Such requested instructions should have been given, since they were applicable to a point material to the issues and the evidence, and not covered by the general charge. (2) The portion of the charge above referred to was misleadleading, since a proprietor may change the whole course of a stream within the limits of his own land, provided he restores the water undiminished to the original channel before leaving his premises, and, if he has exercised reasonable care and foresight, he cannot be held liable for injuries resulting from unforeseen causes. 8. Where the court expressly charged the jury that they must not consider any damages subsequent to the date of the commencement of the action, no error can be assigned because the testimony was not strictly limited to such damages as accrued prior to that date. APPEAL from a judgment of the circuit court for La Crosse county: J. J. FRUIT, Circuit Judge. Reversed. The com This action was commenced July 31, 1903. plaint, as amended, alleges, in effect, that at the time of the commencement of the action, and for three years immediately preceding, the plaintiff was the owner of the 214.75 acres of land described; that during the time there was a large, strong stream of water, known as the La Crosse river, running along the northerly line of a portion of said land, and had so flowed from time immemorial; that during the autumn of 1902 the defendant wrongfully, negligently, and unlawfully diverted Neumeister v. Goddard, 125 Wis. 82. said stream from its natural course, and dug away the banks thereof on and along the plaintiff's land so that said stream, when slightly swollen, would and did run in great quantities and with great velocity into, upon, and over the plaintiff's said land; that since January 1, 1903, and up to and including the present time, said stream, by reason of such diversion thereof, has flowed into and upon the plaintiff's said land, and carried and deposited thereon great quantities of sand and other debris, so that at least twenty acres of said land is thereby totally destroyed for agricultural purposes; that said land was very valuable for meadow; that the grass and hay growing upon said land for 1903 was totally destroyed; that the same was and is covered with mud and sediment, that makes the cutting thereof extremely difficult and expensive; that the defendant also excavated soil along the said north line of the plaintiff's land and on the plaintiff's land, and turned the waters of said river thereon so that the soil is washed away to a great depth and the bank of said stream is destroyed, so that to restore the same would be expensive and difficult, all to the plaintiff's damage in the sum of $8,000. The defendant answered by way of admissions, denials, and counter allegations, and, among other things, to the effect that, if the plaintiff's lands were injured or damaged, the same was the result of natural causes and not by reason of the defendant's negligence; that the banks of the stream are extremely low where the lands described are situated and for several miles above and below said lands, and overflow several times a year, especially during the summer months, and that condition has existed from time immemorial; that the lands in question are low or bottom lands and have overflowed several times every year from time immemorial, and the same has caused more or less clay, sand, and debris to be carried and deposited thereon in the lower places, and the same elevates the lands and increases their value; that such lands were absolutely worthless until within a few years; that less than two acres have |