Anderson v. Thunder Bay River Boom Co.

• Decision Date: 10 June 1886
• Citation: 28 N.W. 518,61 Mich. 489
• Court: Michigan Supreme Court
• Parties: ANDERSON v. THUNDER BAY RIVER BOOM CO.

28 N.W. 518

61 Mich. 489

ANDERSON v. THUNDER BAY RIVER BOOM CO.

Supreme Court of Michigan

June 10, 1886

Error to Alpena.

Turnbull & Dafoe, for plaintiff.

Geo. H Sleator, for defendant and appellant.

MORSE J.

This is an action on the case, brought by the plaintiff as owner and occupant of certain parcels of land bordering on the Thunder Bay river, to recover damages which he alleges he has sustained by means of the booms and dams of the defendant and its negligent and improper management of the logs committed to its charge for booming purposes. The case has been in this court once before, and will be found reported in 23 N.W. 776. The lands were described in the declaration as lots Nos. 4 and 5 of section 31, in township 31 N., of range 7 E.; and lot 1, in section 32, in township No. 32 N., of range 7 E. Upon the trial the plaintiff introduced, without objection, as showing his title to the premises, patents running from the state of Michigan to himself of lots 4 and 5, and also a state patent of lot 1 running to one Gideon Ellsworth. He then offered in evidence the record of a quitclaim deed from said Gideon Ellsworth to himself of a portion of the aforesaid lot 1. Defendant's counsel objected to its introduction, because there was no allegation of injury in the declaration to this particular portion of lot 1, or the crops growing thereon; that the declaration referred to the whole of the lot, and was not specific enough to admit the evidence of this deed under it.

The deed was admitted, and we think properly. Under the declaration the plaintiff could prove that he owned a portion of the premises therein described, and if his recovery was confined to the damages to that portion of the premises to which he proved title, no harm or prejudice could result to defendant. The plaintiff's evidence tended to show that he had been in possession of these lands about 14 years; that he had cleared a portion of the premises, and was engaged in farming. The defendant is a corporation, organized under the laws of our state, and has been doing business as such for several years. Its business consists in the driving, booming sorting, and delivery of logs in the waters of Thunder Bay river. The plaintiff's farm was flooded in the spring and summer of 1883, and a large quantity of logs left upon his land. The defendant had control of all the logs in the river from its mouth up to a point known as the "Speechly Dam," about four miles above the plaintiff's premises. The defendant also had control of the Trowbridge dam, some three or four miles below the plaintiff's land. The testimony upon the part of the plaintiff also tended to show that defendant, in the spring of 1883, caused and permitted solid jams of logs to be formed in the river in front of and below the premises of the plaintiff, and to there remain from four to six weeks; that these jams of logs caused the water in the river to rise, and flood the plaintiff's lands, causing him damage; and that when these jams were moved and broken up they tore out and destroyed a portion of the land in front of plaintiff's premises; that his damages consisted in the loss of crops, destruction of dock, damage to and loss of articles in his cellars, and the killing of a number of apple trees. The plaintiff recovered, in the court below, $375 damages.

The defendant introduced the testimony of Hollis B. Marsh, who gave in evidence that he was the superintendent of the boom company, and that in 1883 the company handled about 180,000,000 feet of logs during that season; that they received these logs out of the North and South branches of the river, over the Speechly dam; that the defendant had no control of the logs until they came over the said dam; and that the company could not prevent the owners of the logs from driving them into the boom company's limits; that the defendant had all the season, and used, a sufficient force of men and appliances to move the logs down stream as fast as they could be run, in the ordinary course of navigation of the stream. Then the two following questions were asked of the witness, objected to, and ruled out by the court: (1) "State whether or not, in the year 1883, the boom company stored or jammed logs, and by that I mean filling the river full above the Trowbridge dam, up to and past the plaintiff's place, before or while there was any opportunity to send logs forward over the Trowbridge dam, on account of the rapids being jammed, and no channel through it. (2) State what other means, if any, there were for navigating that stream, and bringing the logs forward over Trowbridge dam, except through and over these rapids, after a channel had been picked through."

If there was any error in the rejection of these questions, it was subsequently cured, as the witness was...