Brown v. Susquehanna Boom Co.

• Decision Date: 05 October 1885
• Citation: 1 A. 156,109 Pa.St. 57
• Parties: BROWN and others v. SUSQUEHANNA BOOM CO.
• Court: Maine Supreme Court

1 A. 156

109 Pa.St. 57

BROWN and others

v. SUSQUEHANNA BOOM CO.

SUPREME COURT OF MAINE.

Filed October 5, 1885.

Writ of error to the court of common pleas, Lycoming county.

The plaintiffs were the owners of a saw-mill property on the west branch of the Susquehanna river. In the years 1867 and 1868 they procured saw-logs on the upper waters of the river to stock their mill. These logs were rolled into the small streams on which they were banked, and thence driven into the Susquehanna boom. After the logs came into the boom, a large quantity escaped therefrom, and were wholly lost to the plaintiffs. The Susquehanna Boom Company is a corporation created and existing by virtue of an act of assembly, in which the powers of the corporation are set forth as follows: "To erect and maintain such booms, with piers, as may be necessary. * * * And provided, also, that the said corporation shall construct, and at all times keep and maintain, their booms and piers sufficiently strong to secure all the lumber contained therein." By agreement of the parties, under the act of assembly, the court was asked to decide the case; a trial by jury being waived by both parties. The court found that the logs were lost by inevitable accident, or the unavoidable dangers incident to the booming of logs, and that the defendants were not guilty of any negligence.

W. H. Armstrong and R. P. Allen, for plaintiffs.

The Susquehanna Boom Company are liable under their charter without proof of negligence. Pennsylvania & 0. C. Co. v. Graham, 63 Pa. St. 290; Pennsylvania R. Co. v. Com., 3 Grant, 129; Susquehanna Boom Co. v. Dubois, 58 Pa. St. 182. The degree of care which the company was bound to exercise to secure the logs is fixed by the terms of its charter, and the company did not exercise such care as the charter required. Philadelphia & R. R. Co. v. Derby, 14 How. 468. The defendants are liable because they did not observe the proper care required by the common-law rule of diligence on the part of such bailee. Railway Co. v. McDaniels, 107 U. S. 454; S. C. 2 Sup. Ct. Rep. 932; Farnham v. Railroad Co., 55 Pa. St. 59. Where the law casts a duty upon a party, the performance shall be excused if rendered impossible by the act of God; but where the party by his own contract engages to do an act, it is deemed his own folly that he did not provide against contingencies, and in such case the performance is not excused by an inevitable accident. Bullock v. Dommitt, 6 Term R. 650; Hadley v. Clarke, 8 Term R. 259; Barker v. Hodgson, 3 Maule & S. 267; Baylies v. Fettyplace, 7 Mass. 325; Harrington v. Dennie, 13 Mass. 94 R. S. Bentley, H. C. Parsons, and H. C. McCormick, for defendant.

The words of the charter are in effect, if not in terms, an expression of the implied contract of every bailee for reward. Weld v. Proprietors, etc., 6 Me. 93; Coggs v. Bernard, 1 Smith, Lead. Cas. 300. Looking at the charter as a law, it is directory merely, and not intended to fix any liability. Pearse v. Morrice, 2 Adol. & E. 96; Bladen v. Philadelphia, 60 Pa. St. 464. But, considered as a contract between the state and the corporation, it is well established that no boom can be constructed sufficiently strong to hold against such floods as frequently occur, and it is not reasonable to suppose that the legislature intended to impose such extraordinary liability.

CLARK, J. The Susquehanna Boom Company is a corporation originally created and existing by virtue of an act of assembly approved March 26, 1846. Its franchise originally extended up the Susquehanna river from the western boundary of the city of Williamsport, a distance of seven miles; but its limits were afterwards extended, by act of assembly approved April 28, 1864, 15 miles further up the stream. The Loyalsock Boom Company was created by act of assembly approved April 11, 1848, and its franchise extended from the western boundary of the city down the river, a distance of 16 miles, to the Muncy dam. By the act of April 21, 1858, the companies were consolidated under the name of the Susquehanna Boom Company, "with all the rights, privileges, and immunities, and subject to all the restrictions," contained in their respective charters. The powers conferred and duties imposed upon the respective companies, as set forth in their respective charters, were "to erect and maintain on the west branch of the river Susquehanna, between the borough of Williamsport and the mouth of Quineshocque creek, such boom or booms, with piers, as may be necessary for the purpose of stopping and securing logs, masts, spars, and other lumber floating upon said river, and erect such piers, side, branch, or sheer booms as may be necessary for that purpose." "And the said corporation shall construct, and at all times keep and maintain, their piers and booms sufficiently strong to secure all the lumber contained therein; but no person shall be allowed at any time to incumber said booms with rafts, either of logs or other lumber."

The plaintiffs were the owners of an extensive saw-mill property in the city of Williamsport. In the year 1867, and also in 1868, large quantities of their logs, which they had driven down the river into the Susquehanna boom to stock their mills, escaped and were wholly lost; and this action was brought to recover damages for the injuries thus sustained. On September 29, 1880, the parties, by agreement in writing, waived a trial by jury, and submitted the decision of the case to the court under the act of April 22, 1874. The questions now presented for our consideration arise upon exceptions filed to the decision of the court under the provision of that act. There was some dispute as to the precise manner in which these several losses occurred, but the facts are found and particularly stated by the court as follows: "If the logs come into the boom on such low water that they will not pack, but remain on the surface of the water, the boom will not hold one-half as many logs, and will soon fill up to its head. If, then, there should be a slight rise in the river, or if for any other cause this vast body of logs should 'surge down, as they will do, some logs may be forced on top of the boom platforms and cause them to sink under the water, thus making an outlet whereby the great pressure is relieved. The boom platforms being thus sunken, the logs are forced out of the boom at this point; soon a channel is thus made, and a large quantity of logs will surely escape. This is called a 'spew' of logs. It is impossible to prevent this accident. No man can tell when or where it will occur, and the strength or weakness of the boom structure has nothing to do with its occurrence. No part of the boom structure is broken by this accident. This is the kind of accident which occurred when the plaintiffs' logs were lost in 1867, for which they bring their action." "If the logs come into the boom on such low water that they will not pack, but remain on the surface of the water, the boom will not hold one-half as many logs, and will soon fill Up to its head. If, then, no rise in the water or other thing occurs to cause the logs to surge down in the boom, it is certain and inevitable that all logs coming down after the boom is full must go by the boom and be lost. This is called an 'overflow' of logs. This was the situation immediately before the accident happened when the plaintiffs' logs were lost in 1868."

The plaintiffs contend, in the first place, that the Susquehanna Boom Company is liable to them for the value of the logs lost in 1867 and 1868 without any proof of negligence; that by the express terms of the charter the company was held "to construct its piers and booms sufficiently strong to secure all the lumber contained therein;" and that as the powers and privileges conferred were in derogation of common right, were exclusive, and for personal profit, the liability for losses must be according to the strictest import of the statute. They therefore treat the words of the statute as imposing upon the company a responsibility which is absolute and unlimited,—the responsibility of an insurer against all risks of whatsoever kind or character. It will be seen, however, that the responsibility of the company is not expressed in the statute. The liability for losses is but an implication of law from the failure to perform, after the acceptance of the charter, what the charter requires. In the ascertainment of the extent of that liability, therefore, we are remitted to the consideration of what is really required. What, therefore, under a fair construction of the charter, was the company bound to do?

It is doubtless true that such charters are to be construed most beneficially for the public, and more strictly against the company; but the construction must be a reasonable one. The charters of most private corporations are for purposes of...