Morrison, &C. v. Thurman, &C.

Citation56 Ky. 249
PartiesMorrison, &c. <I>vs.</I> Thurman, &c.
Decision Date02 July 1856
CourtCourt of Appeals of Kentucky

APPEAL FROM JEFFERSON CIRCUIT.

James Speed for appellant

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Chief Justice MARSHALL delivered the opinion of the court on the 23d January, 1856, but suspended by a petition for a re hearing, which was subsequently overruled.

This case having formerly come before the court, on an appeal from a judgment against the plaintiffs, on a demurrer to the petition, which was adjudged to be insufficient by the circuit court, the opinion of this court had reference only to the facts as presented in the petition. And, although these facts rendered it necessary to discuss and decide several questions, applying to the rights of riparian owners on the one side, and of navigators of the stream on the other, there was no attempt to apply the principles evolved, to any other state of case than that which was presented by the petition, which, in the opinion of this court, made out a good cause of action.

The facts thus presented were, that the plaintiffs, being rightfully in possession of a portion of the shore and bank of the Ohio river, had appropriated their shore to the uses of their saw mill, on the top of the bank, and for a landing, at which logs were received, to be taken to the mill for sawing, and had constructed, from the mill into the river, log ways, along which, by the aid of machinery, the logs were taken from the water's edge to the mill; and that the defendants had landed two heavily laden coal boats at the shore of the plaintiffs thus appropriated, and of which the appropriation and use were, as the court assumed, indicated by the log-ways; that the boats lay across and over the foot of the log-ways extending into the river, and thus obstructed the use of them; and that after warning to the defendants the boats were still continued in the same position, until, by reason of carelessness and mismanagement, and of the want of sufficient crews to take care of the boats, they sunk, and thus continued, and in fact increased the obstruction to the use, by the plaintiffs, of their shore and log-ways, and of their mill; and that the defendants, though requested and promising to remove the sunken boats, failed to do so in reasonable time, or to use proper diligence for that purpose.

The court decided that the appropriation and use of the shore by the plaintiffs, as indicated by the facts, being, so far as appeared, no impediment to the public right of navigation, was lawful; that the navigator has no right, at his pleasure, to land upon the adjacent banks, the property of private individuals, for such purposes and for such time as he may choose, and no right wantonly to obstruct the riparian owner in the use of the adjacent river and bank, for such useful purposes as are not detrimental to the public right; and that the defendants had no right unnecessarily to land their boats at the bank and landing of the plaintiffs, thus appropriated by them, and no right to lay their boats across the log-ways of the plaintiffs, nor even at the foot of them, whether above or below low-water mark, so as to obstruct the use of them; and that if their acts might at first be justified by necessity or excused by ignorance, the continuation of them after warning was itself a wrong, injurious to the rights of the plaintiffs, and aggravated by being prolonged by the sinking of the boats. The conclusion was, that upon the face of the petition, these injuries being without excuse, and having produced damage to the plaintiffs, constituted a cause of action and ground of recovery. (See Thurman, &c., vs. Morrison, &c., 14 B. Monroe, 367, 375-6.)

It will be seen that in the former opinion the court did not undertake to define, affirmatively, the rights which the navigator has with reference to the banks of a public navigable river, but rather to define, with reference to the facts of this case, the rights of the riparian owner, and to notice the acts of the navigator inconsistent with those rights, and which, being without excuse, and productive of actual loss or damage, constituted a cause of action. It is implied, however, that necessity might justify or ignorance excuse, the landing of the boats at the plaintiffs' shore, and the laying of them across his log-ways. And it must be understood, that although the continuation of these acts, after warning, could not be excused on the ground of ignorance, it might be justified on the ground of necessity. It is to be observed, too, that the sinking of the boats, though attributed in the petition to the fault and mismanagement of the defendants, and charged to have increased as well as prolonged the obstruction, is spoken of merely as aggravating the wrong of not removing them after warning. The effect of failing to remove the sunken boats with reasonable dispatch, is not particularly noticed. But even if the defendants were innocent of fault up to the time of the sinking of their boats, it was their duty, if they knew that they obstructed the plaintiffs in the use of their log-ways and landing, either to abandon the boats and their cargoes, as soon as it was in their power to make the election, giving notice to the plaintiffs, or to remove the obstruction with reasonable diligence and dispatch; being responsible in the last case for nothing more than for the actual loss accruing to the plaintiffs, by the continuance of the obstruction beyond the period reasonably necessary for its removal, in the manner ordinarily used in such cases, and by means within the power of the defendants. The petition states a failure in this respect, and a consequent loss or damage to the plaintiffs, which, even if the defendants were chargeable with no previous fault, would render them liable to an action.

But where the calamity of one person, produced without his fault, causes an injury to the rights of another, the latter can maintain no action, except for the unnecessary continuance of the injury by the wrongful act or neglect of the former. And even where the calamity which produces the injury is caused by mere misjudgment or indiscretion in the exercise of a right, the action should be regarded as one stricti juris, founded on actual wrong, and limited to a recovery for actual damage, produced by that wrong It would seem unreasonable to deny that the exigencies of navigation may be such as to justify, to a certain extent, such use of the banks of a public navigable river, though they be private property, as would, under ordinary circumstances, be a trespass on the close of the owner. But it is difficult to state in precise terms the nature of the exigencies which may constitute this justification, or the extent to which the rights of individual property may be overborne by them. Necessity, which is at once a sufficient cause and a proper limit of the justification, though in the strictest sense it admits of no alternative but that which is absolutely essential to the end in view, and without which it could not exist or be obtained, is a word which, in its ordinary use, admits of far greater latitude, embracing, according to the circumstances of the case, various degrees of urgency, and even of convenience. And in determining whether an act which, abstractly considered, would be an invasion of the legal rights of another, is or is not justified by any existing necessity, not only the circumstances under which it is done, and by which it is induced, but also the nature and extent of the injury or damage involved in and following from it, as well as the care or want of care with which it is done, must be taken into view.

Where the injury is slight and merely ideal or legal, unaccompanied by actual damage, as the mere entry upon the close of another, a slight necessity, amounting only to convenience, being sufficient to repel any inference of wanton or willful injury, if it be not a justification in law, is at least an excuse, which, upon common principles of humanity and comity, gives immunity to that which, in contemplation of law, may be a wrong. The traveller, whether on foot, or on horseback, or in a carriage, who finds the public highway impassable, is justified by necessity in passing through the enclosed grounds of the neighboring proprietor. But the same condition of the road which might justify or excuse the foot passenger in thus using or passing upon the soil of another, might neither justify nor excuse such an invasion of private property by persons travelling with horses and carriages. A navigator who makes fast his boat to a tree upon a woodland shore, can hardly be deemed guilty of a wrong, though it be done for some purpose of convenience only, and not to avoid impending danger. And certainly he has a right in circumstances of difficulty and danger incident to the navigation in which he is engaged, to provide for the safety of his vessel by mooring it at any vacant part of the shore, using as much caution to avoid injury to others as circumstances will allow, and being responsible for any actual damage which may arise to another from his own positive acts, or from his want of proper skill or care. We are to be understood as using the word justification, or excuse, in a sense which does not affect this responsibility. And although in the exercise of this right, founded in necessity, the navigator may have fastened his vessel to a private shore, and laid her upon a part of the river commonly used by the riparian proprietor, yet, if in this use of the shore, which is private property, and of the river, of which he has the right to use for the purposes and incidents of navigation every part not in the actual occupation and use of some one else, he has done nothing more than was reasonably necessary for the safety of his vessel, and has...

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