Cole & Crane v. May

• Decision Date: 24 September 1919
• Citation: 185 Ky. 135,214 S.W. 885
• Parties: COLE & CRANE v. MAY.
• Court: Kentucky Court of Appeals

214 S.W. 885

185 Ky. 135

COLE & CRANE v. MAY.

Court of Appeals of Kentucky.

September 24, 1919

Appeal from Circuit Court, Floyd County.

Action by A. J. May against Cole & Crane, a partnership. Judgment for plaintiff, and defendants appeal. Affirmed.

Smith &amp Combs, of Prestonburg, for appellants.

A. J May, of Prestonburg, pro se.

THOMAS J.

The appellee and plaintiff below, A. J. May, brought this suit in the Floyd circuit court against appellants, Cole & Crane, a partnership, to recover $1,000 damages to plaintiff's land, which he alleged he sustained through the negligence of defendants in floating logs on Beaver creek, running through plaintiff's farm, in such a negligent way as to cause them to form a gorge, and to divert the water from the regular channel of the creek, causing it to cut a large ditch through plaintiff's farm, about 735 feet long and from 37 to 67 feet wide; that the ditch became the permanent channel of the creek, thereby destroying a considerable portion of plaintiff's farm, rendering it worthless for agricultural purposes. The answer consisted of a general denial, and another paragraph alleged that defendants had settled with plaintiff in full for all damages sustained as a result of the wrongs complained of. Upon a trial by jury, under instructions from the court, there was a verdict in favor of plaintiff for $550, upon which judgment was rendered, and complaining of it the defendants prosecute this appeal.

But three objections are discussed in brief of counsel as grounds for reversal of the judgment--they being (1) that the court erred in overruling defendants' motion for a peremptory instruction in their favor; (2) that the court misinstructed the jury; and (3) that the damages are excessive.

1. Three reasons are urged why the peremptory instruction should have been given--they being (a) that plaintiff failed to prove upon the trial a record title to the land after the answer had alleged that defendants "do not have sufficient knowledge or information upon which to found a belief that plaintiff is the owner of the tract of land described in the petition, or any part thereof, or any interest therein"; (b) failure of plaintiff to prove negligence on the part of defendant; and (c) that plaintiff prior to the damage complained of, refused to permit defendants to remove from the creek a natural obstruction, consisting of a towhead or island, which defendants claimed was the cause of the gorge complained of.

As to point (a), conceding for the purposes of this case that the form of denial of the fact of ownership was sufficient to raise an issue upon that point, we find that plaintiff was asked if he owned the land, and he was permitted to answer in the affirmative without objection. Defendants, in cross-examining him, frequently asked him about "his land," and the testimony even went so far as to show, in some of the evidence, the persons from whom he obtained the land. He was also asked by defendants' counsel:

"You own the land on both sides of the creek there? A. Yes, sir; I do."

Defendants also required him to state who owned the land adjoining his. Throughout the examination of witnesses for both plaintiff and defendants, it was plainly conceded that plaintiff was the owner of the land, and we are convinced that defendants waived their right to demand record evidence of plaintiff's ownership.

Disposing of point (b), it is indisputably established that the quantity of logs put into the stream by defendants upon the occasion complained of overtaxed its capacity, and furthermore that they were of such length and dimensions as to prevent them being readily floated, and to cause them to hang upon the bank or other obstructions, thereby causing the gorging of the stream. From this it will be seen that there was abundant evidence to sustain the charge of negligence.

Point (c) is based upon these facts: The first of the logs lodged upon a small island or towhead, but a short distance from the edge of plaintiff's farm, which towhead was a natural formation, and had been in the creek for a long time. For years logs had been floated past it, and while, perhaps, it created slight obstruction, it is not shown to have been a permanent barrier to the use of the stream for floating purposes. Whatever the extent of its obstruction, it was a natural one, and we know of no principle of law that would require the owner to give his consent to the removal of such natural obstructions as a condition precedent to his right to recover for damages from one wrongfully using the stream in the manner we have heretofore indicated. Neither have we been cited to any authority so holding. On the contrary, in the case of Crane v. Hall, 165 Ky. 827, 178 S.W. 1096, involving the same character of injury here complained of, with reference to the negligent gorging of the same creek here involved, this court, in answer to a similar objection, said:

"Appellees were under no duty to remove such natural objects, or to anticipate that appellants' employés would so negligently overfill the creek with logs or operate their dams as to cause the stream to overflow in the extraordinary manner shown by the evidence."

As well might it be required of the owner that he consent to the straightening of...