Boutwell v. Champlain Realty Co.

• Decision Date: 15 May 1915
• Citation: 94 A. 108
• Parties: BOUTWELL et al. v. CHAMPLAIN REALTY CO. et al.
• Court: Vermont Supreme Court

94 A. 108

BOUTWELL et al.

v. CHAMPLAIN REALTY CO. et al.

Supreme Court of Vermont.

May 15, 1915.

Appeal in Chancery, Windsor County; Willard W. Miles, Chancellor.

Bill by Willis R. Boutwell and another against the Champlain Realty Company and another. From a decree sustaining a demurrer pro forma and dismissing the bill, orators appeal. Affirmed.

This case was heard below on demurrer to the bill. The demurrer was sustained pro forma, the bill adjudged insufficient, and dismissed, with costs to the defendants. The plaintiffs appealed.

The allegations of the bill show the following facts:

On the 2d day of October, 1895, by deed of conveyance to them, duly recorded in the land records of the town of Rochester, the plaintiffs became the conditional owners of a certain tract or parcel of land, with the appurtenances thereof, situated in the towns of Rochester and Pittsfield, in this state, and bounded as set forth in the bill; they at once entered into possession, and hitherto have occupied the same as a homestead and farm; and on March 23, 1008, they became and now are the sole owners of said lands and premises.

Quoting from the bill, the plaintiffs' said land is bounded "on the west by lands then of Beckwith and rarmenter, now of Kezer and Emerson." "The White river flows in a southerly direction along the westerly portion of said lands of your orators;" and "for many years last past that portion of said farm adjacent to said river, to wit, 30 acres thereof, has been under cultivation, and during all that time prior to the year 1912 the same was in a high state of cultivation and yielded valuable crops annually, and was of great value to your orators."

For many years prior to the date of the deed to the plaintiffs, the Fall Mountain Paper Company, a corporation under the laws of, and doing business in, the state of Vermont, was the owner of large tracts of timber land adjacent to White river, upstream from the lands of the plaintiffs, and was there engaged in cutting the timber into logs. In the year 1890 the General Assembly of Vermont granted to that company certain privileges on this river; and from the time the enactment went into effect until the time when the company ceased to conduct business on that river, as hereinafter stated, the company cut timber on its lands into logs and floated them down the river, claiming the right so to do under and by virtue of said enactment of the General Assembly, which enactment is averred to be a public law of the state.

Previous to the year 1897, the said lands of the plaintiffs had been damaged by the Fall Mountain Paper Company by floating logs on the river in such a careless and negligent manner that the lands were thereby cut into by the logs and the water, and portions of the same were washed out while the logs were being floated, whereupon the company caused an embankment to be constructed along the bank of the stream adjacent to said lands, and, so long as this embankment remained in good condition and repair, it afforded some protection to those lands against damage caused by floating logs. Subsequent to the year mentioned, that company disposed of certain of its lands on this river to the International Paper Company, a corporation, assigning and transferring to it all such rights and privileges on the river as the first-named company had, whereupon that company ceased cutting timber on those lands or floating logs on the river.

Upon thus acquiring these properties and rights, the International Paper Company proceeded to exercise the right of floating logs on White river, claiming to have acquired such right from the Fall Mountain Paper Company, and for several years thereafter floated logs from points above the plaintiffs' lands, and so continued until the incorporation of the defendant Champlain Realty Company as a subsidiary company. Thereupon certain of the properties which were of the Fall Mountain Paper Company, and such rights and privileges in and on White river as that company possessed previous to its disposition thereof to the International Paper Company, were transferred and assigned to the Champlain Realty Company; the latter then and there entering into possession of the properties. This company floated logs and exercised all such rights and privileges in and on the river as had been acquired by it, claiming as the successor of the Fall Mountain Paper Company, and thus continuing down to and including the year 1913. During all the same time, the Champlain Realty Company has claimed and now claims the right to charge tolls and collect the same of all persons and corporations floating logs on any part of White river.

The embankment erected by the Fall Mountain Paper Company was kept in good condition and repair by each of the companies mentioned while engaged in floating logs on the river, and during all that time afforded some protection to the plaintiffs' lands, from injury occasioned by the floating of logs, until the year 1912. During the spring and summer of that year, and while the Champlain Realty Company was engaged in floating logs, large jams of logs were by it carelessly and negligently suffered and permitted to form on the river below the plaintiffs' lands, causing the water to dam up, set back, and overflow large tracts of land above the plaintiffs' land; and a large number of logs of the company and a large quantity of flood wood and débris was washed off said lands farther up the stream and carried down the river and deposited on the plaintiffs' land, and much sand and gravel was also washed onto it. During the same time, a large quantity of said logs were thrown by the water against the said embankment, which was thereby broken and torn out, and the earth about it was washed away, and many large holes, depressions, and openings were made and formed in the plaintiffs' land. The company, by its agents and servants, then entered upon the plaintiffs' land and removed therefrom the logs thus deposited thereon, and in so doing dug up the soil and thereby greatly injured the land, whereby, and solely by reason of the depositing of said logs, flood wood, débris, sand, and gravel thereon, the lands of the plaintiffs were greatly injured in value, and for purposes of cultivation; and the making of holes, depressions, and openings, and the digging up of the soil as above stated, greatly injured said lands, and a large portion of them was thereby rendered wholly useless and unfit for cultivation and the raising of crops, hitherto continuing.

This company floated logs down the river from above plaintiffs' land in the spring and summer of 1913 in such a careless and negligent manner that a large number of logs were thrown against such portions of said embankment as then remained in position, which were thereby torn out and washed away. The damages resulting therefrom to the plaintiffs were similar to those above shown in the preceding year. The company has neglected and refused, and still neglects and refuses, to fill up the holes, depressions, and openings made in the plaintiffs' land in. the two years mentioned, and neglected and refused, and still neglects and refuses, to reconstruct said embankment in whole or in part, but has suffered and permitted said lands to remain in the damaged condition, and neglects and refuses to pay the plaintiffs any sum as damages for the injuries thereto.

Until an embankment, sufficient fully to protect the plaintiffs' lands from injuries caused by floating logs, is erected along the bank of the river, and maintained in good and sufficient repair, logs cannot be floated on the river from points above their lands without doing damage to said lands by tearing out large portions of the soil and causing large quantities of flood wood, débris, sand, and gravel to be deposited thereon, which it is averred will work irreparable damage thereto. It is further averred that, if the plaintiffs are obliged to build and maintain such an embankment there for that purpose, they will be put to great and disproportionate expense; that, whenever their lands are covered with flood wood, débris, sand, and gravel, they are put to great and disproportionate expense in clearing the same of such substances, of which the American Realty Company is fully advised; that in order to recover damages for past injuries to their said lands, and for future injuries thereto, or either of them, the plaintiffs will be compelled to resort to a multiplicity of suits at law, unless a court of equity takes cognizance of the matters and things set forth in the bill; that it was the lawful duty of the several companies mentioned, during all the time they respectively floated logs on the river, and is now the duty of the defendant companies, to employ sufficient means to prevent injury to the plaintiffs' lands, and fully to protect them therefrom; that the Champlain Realty Company is the sole owner of said properties and rights by it acquired from the International Paper Company, and the American Realty Company is engaged in cutting timber and floating logs down the river in question for said Champlain Realty Company, which latter company will continue in such business and floating logs for years to come, unless restrained from so doing; and that the plaintiffs have no adequate remedy at law in the premises. The prayer is that the Champlain Realty Company be decreed to pay to the plaintiffs such damages as they have suffered in the premises or may suffer during the pendency of this bill; that it be ordered and directed to construct along said river, adjacent to the plaintiffs' said lands, within a time limited, an embankment sufficient fully to protect said lands from injuries occasioned by floating logs on the river, or employ such other adequate means as are requisite and adequate for that purpose; that the Champlain Realty Company and the American Realty Company be enjoined and prohibited from further floating logs on the river from...