The Grand Rapids Booming Co. v. Jarvis

• Decision Date: 13 October 1874
• Court: Michigan Supreme Court
• Parties: The Grand Rapids Booming Company v. Morris Jarvis. [1]

30 Mich. 308

The Grand Rapids Booming Company v. Morris Jarvis. ^[1]

Supreme Court of Michigan

October 13, 1874

Heard July 23, 1874 [Syllabus Material]

Error to Kent Circuit.

Judgment of the circuit court affirmed, with costs.

Norris Blair & Kingsley, and Hughes, O'Brien & Smiley, for plaintiff in error.

Thompson & Reeves, for defendant in error.

OPINION

Christiancy J.:

Jarvis, who was tenant for years of a farm in Kent county, bounded for over a half mile by Grand River, some distance above Grand Rapids, brought his action of trespass on the case in the Kent circuit against the booming company, for damages for flowing back the water of the river upon the lands by means of their booms and their appurtenances, erected and maintained in, along and across the river below these lands, and jams of logs and timber, received, kept and assorted in, and in connection with their booms, as used and operated by the company.

The declaration need not be further noticed than to say, that it was in all respects appropriate and sufficient for the cause of action (if any) which the evidence on the part of the plaintiff tended to prove.

The plea was the general issue. The plaintiff recovered a verdict for three hundred dollars; and the defendant brings the case to this court upon writ of error and bill of exceptions.

The first error assigned is that in the proceedings for empaneling a jury, a juror called as a talesman, being challenged by the plaintiff because he had been on a jury in the same court at the same term as a talesman, was rejected by the court against the objection of defendant. The object of this assignment of error was to determine the question of the construction of section 6045, Compiled Laws. But the question does not properly arise upon this record, which states that "other talesmen were summoned, and other challenges made by the parties respectively, until the number of twelve jurors were obtained, with whom both parties, by counsel, announced themselves contented; and such jurors were duly sworn." No error, therefore, can be assigned for the rejection of this talesman, whether the cause assigned was valid or not. The result might have been different if the court had admitted a juror challenged for cause: See Atlas Mining Co. v. Johnston, 23 Mich. 36. ^[1]

The plaintiff gave evidence tending to show that the lower end of the defendant's boom is near the bridge of the Detroit and Milwaukee Railway, where it crosses Grand River at the northern limits of the city of Grand Rapids, and that these booms extend from that point a mile and a half up the river; that above this bridge the river is navigable for rafts, logs and steamboats (except when obstructed by booms and jams of logs); that defendant's booms are supported by, and attached to, piers extending across the river at the bridge from shore to shore; that they have two rows of booms and piers extending up the river from the bridge to the head of the boom, where the dividing is done; that the channel between these rows of piers and booms is about twenty feet wide, and the sides between the channel and shore are store booms; that there are a number of piers in these store booms, between the channel and the banks on both sides, and also a row of piers across the river at the head of the boom, and at two places below, and also scattering piers above the head of the booms in the river; that these piers are timber frames eight to twelve feet square filled with stone and extending to the surface of the water; that in the spring or early summer, when the logs come down, they are stopped at the head of the booms, and fill the river from bank to bank, as far up from the head of the boom as one can see; that there is an opening at the head of the booms; that the logs for Grand Haven (near the mouth of the river) are passed along down the channel, those for Grand Rapids into the store booms at the sides; that the business of separating logs begins in the latter part of May and continues two or three months, during which time the channel is filled with logs passing down all the time; that the river during this time is not navigable for skiff, boat or canoe, which could not pass through the jam of logs from above the head of the jam down through it, and this for a period of two or three months; that the jam of logs often extends from the top down to the bottom of the river, some twelve feet in depth, lying upon and across each other in all shapes; that stakes had been stuck just above the head of the booms, and at the foot of the rapids some distance below the booms, for the purpose of testing the effect of the booms and the logs upon the water, and it was found that, when the logs came down and were being stopped and divided, the water would be falling at the foot of the rapids below, while, at the same time, it would be rising at the head of the booms; that the booms and logs then raised the water above the boom from one to three feet, and the current thus checked was much slower; that there was formerly a good current there, but since these booms were placed there it was much slower; and that, by these means, the water was flowed back upon the lands occupied by plaintiff, which were comparatively low bottom-lands, but of good soil, upon which good crops, mostly of hay, could be, and had been, usually raised in seasons before the boom was constructed and the water thereby thrown back upon them; though the crops had, in a few instances, been injured by a June freshet before. Plaintiff also gave evidence tending to show the amount of damage he had suffered from this cause during the three years covered by the declaration.

The defendant, by its president and other witnesses, gave evidence tending to show that it was organized as a corporation and commenced business in the winter and spring of 1869, and had since maintained the booms in question; but that the booms were so constructed as to leave the channel open and unobstructed in the center of the river, where the natural channel flows, one hundred feet wide; that said booms were constructed for the purpose of assorting those logs which were to be stopped at Grand Rapids to be manufactured into lumber, from those that go down the river to points further on, and also for the purpose of booming and pocketing those which were to stop at Grand Rapids, until they can be manufactured; that in the spring large quantities of logs are put into the streams above, which empty into Grand river; that logs are put in large rollways by parties over whom the defendant has no control, and with whom it has no connection, without any sufficient force to run them; that they are left in the streams in large rollways, and to float down the stream or stop, according to the state of the water; that they are left in that way until they are washed out of said streams by large freshets in the spring and come down Grand River in large quantities; at times from twenty to thirty million feet of them arrive at the boom of defendant in the course of twenty-four hours; that, along with these, come the logs of persons of the boom company, and of those for whom the company assort and boom logs; that, in order to save these logs, it was necessary to have strong booms stretched across the river at Grand Rapids; that the booms of defendant were properly constructed for this purpose, with skill and care, with reference to their ability to stop the logs without causing the water to rise in the river; that when the logs arrived in large quantities the company worked a large number of hands; that their booms were so constructed as to afford all the capacity for assorting logs that could be had upon the stream; that they had seven places for assorting the logs, and employed a large number of men; that they used all the care possible and practicable in assorting and booming the logs; and that the business had been rapidly increasing, the amount of booming and dividing done in 1869 being about seventy-five to one hundred millions of feet, and in 1871 to one hundred and twenty-five millions.

Defendant also gave evidence tending to controvert some of that given by the plaintiff upon several points.

Exceptions were taken to some of the evidence introduced by the plaintiff, and some other minor questions are raised; but we shall defer their consideration until the main central proposition of the plaintiff in error is disposed of; for the present we shall not notice them; because, if that proposition of law be correct, all these minor questions become immaterial, as the plaintiff would not be entitled to recover in any event.

That central proposition may be stated to be, that if the jury should find (as from the evidence it was competent for them to find) that the booms of the defendant were necessary to the business of running down, assorting and storing logs (for the purposes shown) in such manner as best to guard against loss and to render the business most safe and profitable to those engaged or interested in it; and if they were properly constructed with reference to these objects, and with such a degree of care and caution against raising the water and overflowing the lands of others along the river, as was consistent with the accomplishment of the objects above stated (that is, the safety and profit of the business of running, assorting and storing logs), then, though the water of the river might still be raised, and the lands of others overflowed to their damage, by means and in the use of these booms, by reason of the jams caused either by the logs controlled by the defendant, collected in or above the booms or by other logs over which they had no control, thus arrested and accumulating, the defendant cannot be held liable; but may rightfully,...