Ireland, &C. v. Bowman & Cockrell

Decision Date29 October 1908
Citation130 Ky. 153
PartiesIreland, &c. v. Bowman & Cockrell
CourtKentucky Court of Appeals

Appeal from Rockcastle Circuit Court.

L. F. JOHNSON, Special Judge.

Judgment for plaintiff. Defendant appeals. — Reversed.

T. E. MOORE, Jr., JNO. W. BROWN, ELI H. BROWN, J. W. ALCORN and L. A. NUCKOL for appellants.

T. Z. MORROW and C. C. WILLIAMS for appellees.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

Bowman & Cockrell have a steam sawmill on Rockcastle river about a mile below a small mill owned by Mary T. Ireland, etc., who hold it under the will of J. M. Thomas, the former owner, and own land on both sides of the stream. In the year 1888 one Sam Brooks, who then owned this sawmill, built across Rockcastle river a dam, which he maintained until about the year 1894, when he sold out to W. R. Dillion, who raised the dam higher, and afterwards sold the property to Thomas. Thomas operated the mill as long as he lived, and at his death devised it to Mary T. Ireland and others, who have since operated the mill and maintained the dam. At the time Thomas bought the property, Bowman & Cockrell were operating a mill above this one, and afterwards, being required to take out a boom which they had maintained, they ceased operating that mill, and started one about a mile below Thomas' mill, which they have since operated. On July 12, 1906, they brought this suit against the devisees of Thomas, alleging that Rockcastle river is a navigable stream; that the dam obstructs the navigation of the stream, and prevents them from floating logs down the stream to their mill; that the stream is navigable for floating logs, and has for many years been used for this purpose, but that logs coming down the stream to their mill are caught by the dam, and detained until they are injured; and that by reason of this obstruction of the stream they had been damaged in the sum of $2,000. They prayed that the defendants be required to remove the dam from the stream, and for judgment for the damages sustained. In the first paragraph of their answer, the defendants set up the will of Thomas, and charged, among other things, that they held the property, and operated it, only as trustees under the will. In the second paragraph of the answer they denied the allegations of the petition. In the third paragraph they alleged that Thomas and those under whom he claimed had maintained the dam for over 15 years, and had acquired by prescription a right to maintain it, pleading the statute of limitation in bar of the action. By the fourth paragraph they pleaded that Bowman & Cockrell knew that Thomas was negotiating for the purchase of the property, and knew that the dam was a material inducement to him to make the purchase, and that with this knowledge they stood by and made no objection to the existence or maintenance of the dam before he had purchased and paid for the property. These facts they pleaded as an estoppel. The plaintiff filed a demurrer to all of the answer except that which controverted the allegations of the petition. The circuit court sustained the demurrer, and, the case having been prepared on the questions of fact raised by the answer, the circuit court entered a judgment, adjudging that the defendants remove the dam, and that the plaintiffs recover one cent in damages. From this judgment the defendants have appealed, and the plaintiffs have prosecuted a cross-appeal because they were not allowed substantial damages.

1. The court did not err in sustaining the demurrer of the plaintiffs to the first paragraph of the answer. The trustees and devisees were both made defendants to the petition. If the dam was a public nuisance, J. M. Thomas could not by his will confer upon the defendants authority to maintain it, and the trustees are answerable as trustees for any damage which they may have done by the maintenance of the nuisance. They are sued here as trustees. The trustees and devisees simply stand in the shoes of J. M. Thomas. The suit is against them as the representatives of his estate.

2. The court did not err in sustaining the demurrer to so much of the answer as pleaded the estoppel. Bowman & Cockrell were not then operating a mill below the dam. They had at that time no cause of complaint about it, it was not in their way. They were not under the circumstances called upon to hunt up Thomas and make known to him that the dam was an unlawful obstruction in a navigable stream. He knew the facts as well as they did. They were not called upon then to complain of a dam that was not injuring them in any way, as they were above it, and it in no wise interfered with their floating logs down the river to their mill, which was then located above the dam.

3. The plaintiffs show a right to maintain the action. While the dam in the stream may be a common nuisance if it is an unlawful obstruction of the stream, and a special damage to the plaintiffs, they may sue. If the plaintiffs' logs are caught and held by the dam until they rot, or until the plaintiffs, at special expense and labor, get them over the dam, they have sustained a special damage, not common to the rest of the public. Where property is destroyed or injured by a public nuisance, the owner of the property may have an action for redress. Wood on Nuisances, section 787; 30 Am. & Eng. Cyc. 377.

4. The question of limitation is of more difficulty. It is insisted that prescription does not run in favor of a public nuisance, and that each continuation of the nuisance is a fresh wrong. This was the common-law rule, and it was perhaps based on the maxim that time does not run against the King. But in Kentucky time runs against the Commonwealth. Ky. Stats., 1903, section 2523; Rowan v. Portland, 8 B. Mon. 232; Cornwall v. L. & N. R. R. Co., 87 Ky. 72, 9 Ky. Law Rep. 924, 7 S. W. 553. In Wood on Limitation, sections 180, 181, the rule is thus stated: "The rule in reference to acts amounting to a nuisance is that every continuance is a new nuisance, for which a fresh action will lie, so that, although an action for the damage from the original nuisance may be barred, damages are recoverable...

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10 cases
  • United States v. Cress No 84 United States v. Achilles Kelly No 718
    • United States
    • United States Supreme Court
    • 12 d1 Março d1 1917
    ......St. Rep. 232, 50 S. W. 1095; Banks v. Frazier, 111 Ky. 909, 912, 64 S. W. 983; Ireland v. Bowman, 130 Ky. 153, 161, 113 S. W. 56, 17 Ann. Cas. 786), while sustaining private ownership of ......
  • Louisville Trust Co. v. Morgan
    • United States
    • Court of Appeals of Kentucky
    • 21 d2 Maio d2 1918
    ...... Barstow, 22 R.I. 245, 47 A. 365, 63 L.R.A. 227. Nor do. we find in the case of Ireland v. Bowman & Cockrell, . 130 Ky. 153, 113 S.W. 56, 17 Ann.Cas. 786,. [203 S.W. 558] . anything ......
  • Wunderlich v. Scott
    • United States
    • Court of Appeals of Kentucky
    • 19 d5 Fevereiro d5 1932
    ......A judgment cannot be properly. entered upon an issue not made on the pleadings. Ireland. v. Bowman & Cockrell, 130 Ky. 153, 113 S.W. 56, 17 Ann. Cas. 786; Clark, etc., v. Logan County, ......
  • Kirchner v. Muller
    • United States
    • New York Court of Appeals
    • 28 d2 Fevereiro d2 1939
    ......Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627. Cf. Ireland v. Bowman & Cockrell, 130 Ky. 153, 113 S.W. 56,17 Ann.Cas. 786;Smith v. Coleman, 100 Fla. 1707, 132 ......
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