Thurman, &C. v. Morrison, &C.
| Decision Date | 24 January 1853 |
| Citation | 53 Ky. 367 |
| Parties | Thurman, &c. <I>vs</I> Morrison, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON CIRCUIT.
Thurman & Co., as assignees of a lease demising a certain lot in the city of Louisville, between Beargrass creek and the Ohio river, having a front on the river of one hundred and seventeen and a half feet, filed their petition in the Jefferson circuit court against Morrison and others, to recover damages for alleged obstructions and disturbance occasioned by the defendants, to the use and enjoyment by the plaintiffs, of the bank of the river within the boundaries of the demised premises, and of the riparian rights claimed by them as incident to the ownership and possession of said premises. A demurrer to the petition was sustained, and a judgment having been rendered for the defendants, the plaintiffs have appealed to this court for its reversal.
The petition states, in substance, that a saw-mill was erected on said demised premises, which was wholly supplied with logs by means of the river; that for the purpose of drawing the logs from the river up to the mill to be cut, ways were constructed from the mill, projecting into the river beyond low water mark, and were used for the purpose aforesaid; that at the time of the acts complained of, and before and ever since, the plaintiffs were entitled to, and except so far as obstructed by the defendants, had the use and possession of the leased ground down to low water mark, and also of the river and riparian rights in front of said lot. And the matter complained of, as stated in the petition, is, that on the — day of February, 1852, the defendants, by themselves or agents, landed two large flat boats loaded with stone coal, in front of their said lot, and across the foot of their said log-ways, so connected with their saw-mill, and that, although notified to remove the same, and warned of the rights of the plaintiffs, they failed and refused to do so, but permitted said boats to remain at plaintiffs landing in front of said lot, and across said log-ways, for the space of ____ days, when, from want of proper care and attention, and because of defendants negligence and bad management, and in not having a sufficient and capable crew on board to take care of said boats, they sunk, greatly obstructing the plaintiffs in the use of their mill, and to their great damage. And the plaintiffs further state, that after said boats were sunk they repeatedly requested the defendants and their agents to remove them, which they promised but refused to do, until the — day of October, 1852; that during all the while the plaintiffs were greatly obstructed in the use of their said landing and log-ways, and were compelled, because of the obstruction from said sunken boats, to stop the running of their saw-mill, and be idle at different periods, while said boats lay sunk at and across their log-ways, to-wit: for the period of twenty-nine days; and that, even when by reason of sufficient water they were able to get saw-logs to their mill and to run it, still they were put to great cost and charges for additional labor necessary to get the logs to the mill; also, that the sunken boats occasioned a great deposit on their log-ways, which required heavy expenditures to remove, and which it was necessary to remove in order to have the proper use of said ways, whereby, and in consequence of all which, they say they have been greatly damaged, and they pray judgment for $1,200, &c.
This petition having been adjudged bad on demurrer, the plaintiff offered an amendment, stating, in substance, that at the time when said boats were landed and sunk, the said log-ways, so far as they extended into the river below low water mark, were embeded in the soil at the bottom of the river, and did not rise above the bed of the river. The amendment was objected to, and was not permitted to be filed as a part of the petition, to which the plaintiffs excepted. They are of course entitled, in this court, to the benefit of the amendment as if it were a part of the petition, and the amendment repels the presumption, if it might otherwise arise, that the navigation was or would probably be impeded by that part of the log-ways which extended below low water mark.
The main objection taken to the petition seems to be founded upon the idea that damages are claimed only for an alleged injury to the log-ways of the plaintiffs so far as they extend into the river below low water mark; and it is contended, that the Ohio river is a public navigable river, the bed or soil of which, below low water mark, is not private but public property; that consequently the log-ways, so far as they extend below or beyond low water mark, are a nuisance, and that, therefore, no action can be maintained for an injury to them. But although the petition describes the log-ways as thus extending into the river, and claims a right thus to extend them; and although, in describing the injury, it states that the boats lay across the ends of the plaintiffs log-ways, we do not understand it as claiming damages exclusively for an alleged injury to that part of the structure, nor indeed as alleging any such injury, unless it be in the very last clause which mentions the deposit. And even if it does allege such injury, and claim damages for it, and if there can be no recovery as to that matter, because the structure itself to which the injury was committed is a nuisance, still, if in addition to this, the petition shows in the plaintiffs an actual legal right, and an injury to that right by the defendants, it shows to that extent a cause of action, which should have sustained it against the general demurrer. It does not appear, explicitly, whether the water was high or low when the boats landed, or when they sunk. But if we are to take judicial knowledge of the character of the Ohio river, as we undoubtedly may, we might, if it were material, assume, both from the time of the year and from the fact of large flat boats being at Louisville with heavy loads, that the river was up, and that the boats landed and were sunk above the low water mark, and therefore, in part at least, above that portion of the log-ways which was below the low water mark. But we regard this assumption as of little consequence in the present attitude of the case. The material complaint is not that the log-ways were injured in any part, but that the plaintiffs have been obstructed by the defendants in the accustomed use of their bank and landing, and of the water in front thereof, and of the log-ways which they had constructed from their mill to and under the water, all of which were used for receiving logs at the surface of the water and drawing them up to the mill. And even if they have extended...
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