Alabama Lumber Co. v. Keel

• Decision Date: 19 April 1900
• Citation: 28 So. 204,125 Ala. 603
• Parties: ALABAMA LUMBER CO. ET AL. v. KEEL.
• Court: Alabama Supreme Court

28 So. 204

125 Ala. 603

ALABAMA LUMBER CO. ET AL. v. KEEL.

Supreme Court of Alabama

April 19, 1900

Appeal from circuit court, Jefferson county; J. A. Bilbro, Judge.

Action by Moses B. Keel against the Alabama Lumber Company and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This action was brought by the appellee, Moses B. Keel, a riparian proprietor, against the appellants, to recover damages for injuries to his lands, alleged to have resulted from the negligence of the defendant in floating timbers in Paint Rock river. The complaint, as amended, charged that the defendants, by placing large quantities of timber into and along the banks of Paint Rock river, negligently and wrongfully taxed the capacity of the Paint Rock river to float the timbers, and, upon such timbers being caught by the boom which was stretched across the river below the plaintiff's property, there was a jam or drift caused which forced the water out of its natural channel and caused it to flow over the plaintiff's lands, washing the soil from the surface thereof, destroying the fences of the plaintiff, and causing other serious damage. The cause was tried upon the plea of the general issue, and upon special pleas which set up that the defendants were using the Paint Rock river in a proper and legal way, for the purpose of floating timbers at the time mentioned in the complaint. It was admitted on the trial that Paint Rock river was a navigable stream for the purpose of floating timbers. It was shown that said river was a long, narrow stream, 125 to 180 feet in depth at the ordinary stage of the water; that the plaintiff owned a plantation along the banks of said stream that a short distance below the plaintiff's plantation there was constructed what was known as a "cross boom," which was formed by pieces of hewn lumber being coupled together by chains, and tied clear across the stream for the purpose of catching the logs and other timbers as they floated down the stream. It was shown that the defendants were engaged in the lumber business at Paint Rock station, a short distance below the cross boom, and that their method of getting timber for their mills was by floating logs down Paint Rock river. The cross boom just below the plaintiff's property had been constructed and was in use for a number of years. It was shown that the defendants would cut the timber from the forests adjoining the stream in the summer and fall of the year, and place the timber so cut upon the edges of the stream and near thereto and that in the winter and spring, during the freshets, the stream would rise and enable the timbers so cut and placed near the banks to be floated down the stream; that the cross boom would catch the timber, and that the defendant's employés would, by the opening of such boom, let the timbers pass through and be floated down to the mills of the defendants, where they would be caught in the mill or pocket boom, and there taken from the water and sawed into lumber. The evidence for the plaintiff tended to show that during the winters of 1898 and 1899 the defendants placed such a great quantity of timbers along Paint Rock river that when the freshets came and the tides rose there was caused a jam of timbers, extending from the cross boom on up to and beyond the plaintiff's lands; that this jam continued for a long time, the freshets being unprecedented during the winters referred to; that as the result of the jam the water was forced out of its natural channel, and created a current which carried some of the timbers floated down the stream from the plaintiff's property; that during this time the water was over the plaintiff's lands from 2 to 10 feet in depth; and as the result the plaintiff's soil was cut away from his lands, his fences were washed away, and his property otherwise seriously injured. The evidence for the defendants tended to show that the cross boom was constructed so that it would float upon the water, and that the boom would rise and fall with the stream; and that as a consequence the existence of the boom would not increase the water, and the quantity of timber in the boom would not materially affect the level of the water in the drift. It was further shown that in times of high water, such as was shown by the plaintiff's evidence, when the lands were submerged and washed, it was impossible to open the boom and let the logs through, on down to the defendants' mills that during the time complained of the defendants, through their agents and employés, did all in their power to prevent the jam from being formed, but that on account of the unusual freshets they were unable to prevent it. It was further shown by...