94 U.S. 469 (1877), Milwaukee & St. P.r. Co. v. Kellogg

Citation:94 U.S. 469, 24 L.Ed. 256
Case Date:April 30, 1877
Court:United States Supreme Court

Page 469

94 U.S. 469 (1877)

24 L.Ed. 256




United States Supreme Court.

April 30, 1877


ERROR to the Circuit Court of the United States for the District of Iowa.

The facts are stated in the opinion of the court.


Mr. John W. Cary for the plaintiff in error.

Mr. Myron H. Beach, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

This was an action to recover compensation for the destruction by fire of the plaintiff's saw-mill and a quantity of lumber, situated and lying in the State of Iowa, and on the banks of the river Mississippi. That the property was destroyed by fire was uncontroverted. From the bill of exceptions, it appears that the 'plaintiff alleged the fire was negligently communicated from the defendants' steamboat 'Jennie Brown' to an elevator built of pine lumber, and one hundred and twenty feet high, owned by the defendants, and standing on the bank of the river, and from the elevator to the plaintiff's saw-mill and lumber piles, while an unusually strong wind was blowing from the elevator towards the mill and lumber. On the trial, it was admitted that the defendants owned the steamboat and elevator; that the mill was five hundred and thirty-eight feet from the elevator, and that the nearest of plaintiff's piles of lumber was three hundred and eighty-eight feet distant from it. It was also admitted that there was conflict between the parties plaintiff and defendant respecting the ownership of the land where the mill stood and the lumber was piled, both claiming under a common source of title. The plaintiff had built the mill, and he was in the occupation of it, believing he had a right to be there.'

Such having been the admissions, the court refused to allow

Page 471

the parties to try the title to the land upon which the mill and lumber had been placed, proof of title being, in the opinion of the court, immaterial. To this ruling the defendants excepted, and it is the first error they have assigned. We are unable to perceive any reason why the proof offered was not, as the Circuit Court held it to be, perfectly immaterial to the issue between the parties. By the law of the State of Iowa, 'where an occupant of land has color of title thereto, and in good faith has made any valuable improvements thereon, and is afterwards, in a proper action, found not to be the rightful owner thereof,' he is entitled to payment or credit for the value of his improvements. Code of Iowa, sects. 1976-1981. The effect of this statute is to make such an occupant practically the owner of his improvements, even though he be not the owner of the land on which they have been made. If, therefore, the title to the land had been shown to be in the defendants, the proof would not have affected the right of the plaintiff to recover compensation for wilful or negligent destruction of the buildings and lumber. Nor could it have changed the degree of prudence and care which the defendants were bound to exercise in order to guard against injury to that property. The plaintiff is not to be regarded as a mere trespasser, wantonly thrusting himself or his property in the way of danger,--a trespasser to whom the defendants owed a less degre of caution than would have been due if he had been the undisputed owner of the fee-simple of the land on which the mill stood. We cannot admit that the defendants owed no duty to the plaintiff, even if he was occupying their land without their consent. An attempt was made during the argument to maintain that they had been found by the jury guilty only of an act of omission, and it was insisted that such an act would not give a right of action to the plaintiff if he was wrongfully in possession of their land. Neither the fact asserted nor the inference drawn from it can be conceded. The verdict of the jury was, 1st, That the elevator was burned from the steamer 'Jennie Brown;' 2d, that such burning was caused by not using ordinary care and prudence in landing at the elevator, under circumstances existing at that particular time; and, 3d, that the burning of the mill and lumber was the unavoidable consequence of the burning of the elevator.

Page 472

The only reasonable construction of the verdict is, that the fault of the defendants--in other words, their want of ordinary care and prudence--consisted in landing the steamer at the elevator in the circumstances then existing, when a gale of wind was blowing towards it, when the elevator was so combustible and so tall. If this is not the meaning of the verdict, no act of negligence, of want of care, or of fault has been found. And this is one of the faults charged in the declaration. It averred, that, while the wind was blowing a gale from the steamboat towards and in the direction of the elevator, the defendants carelessly and negligently allowed, permitted, and counselled (or, as stated in another count, 'directed') the steamboat to approach and lie alongside of or in close proximity to the said elevator. This is something more than nonfeasance: it is positive action, the result, consequence, or outworking, as the jury have found it, of the want of such care as should have been exercised.

It has been further argued in support of this assignment of error that the proffered proof of title should have been admitted, because it tended to show contributory...

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