Crookston Waterworks, Power & Light Co. v. Sprague

• Decision Date: 11 February 1904
• Docket Number: 13,593 - (123)
• Parties: CROOKSTON WATERWORKS, POWER & LIGHT CO. v. DANIEL E. SPRAGUE
• Court: Minnesota Supreme Court

98 N.W. 347

91 Minn. 461

CROOKSTON WATERWORKS, POWER & LIGHT CO. v. DANIEL E. SPRAGUE

Nos. 13,593 - (123)

Supreme Court of Minnesota

February 11, 1904

Petition for Rehearing filed May 13, 1904

Action in the district court for Polk county by Crookston Waterworks, Power & Light Company to recover $12,000 damages for defendant's negligence in driving certain logs over plaintiff's dam in Red Lake river at Crookston, whereby the dam was partly destroyed and plaintiff's business injured. The case was tried, without a jury, before Watts J., who found in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed. Reversed on reargument.

SYLLABUS

Navigable Streams.

Section 2385, G.S. 1894, declares that all rivers within the state, of sufficient size for floating logs, timber, and lumber, are public highways, so far as to prevent obstructions to the same for such purposes. By section 2386 riparian owners are authorized to construct dams across such streams, provided they are equipped with locks, sluiceways, or booms sufficient and so arranged as to permit such materials to pass through without unreasonable delay. Held, the right of the public to the use of streams for driving logs is not paramount and unqualified, but subject to the incidental delays and hindrances occasioned by dams, if the means of passage through or around them is reasonably sufficient for the purpose.

Driving Logs over Dams.

What constitutes a sufficient means of passage must depend upon the conditions of each particular case. A dam constructed with sufficient sluiceways to permit the free passage of logs, but which is not equipped with piling or piers to which sheer booms may be attached, or some other means provided by which the logs may be directed to the sluiceways, does not meet the requirements of the statute, and creates an unreasonable hindrance to the passage of logs at periods of high water, when it is difficult and impracticable to attach sheer booms, and guide the logs into the sluiceways, and keep them from running over the crest of the dam. Held that, under the facts of this case, the owner of logs, who permitted the same to pass over the dam without guiding them through the sluiceways by means of sheer booms, and without taking out the sluice boards, was not responsible for damage to the dam occasioned thereby.

Findings.

The facts found by the trial court are not inconsistent. They justify the judgment as ordered, and appellant is not entitled to judgment upon the facts found.

Rome G. Brown and Charles S. Albert, for appellant.

In the general conduct of their pursuits and in their general uses of this river, both parties were within their rights. The riparian owner has a right to construct, maintain and operate dams upon the rivers of this state, both those that are technically navigable and those that are not. Brisbine v. St. Paul & S.C.R. Co., 23 Minn. 114; Morrill v. St. Anthony Falls W.P. Co., 26 Minn. 222; State v. Minneapolis Mill Co., 26 Minn. 229; Hanford v. St. Paul & D.R. Co., 43 Minn. 104; Minnesota L. & T. Co. v. St. Anthony Falls W.P. Co., 82 Minn. 506; Kretzschmar v. Meehan, 74 Minn. 211, citing Lamprey v. Nelson, 24 Minn. 304.

After the dam owner has provided sluiceways required by statute for the use of the log driver, then the right of neither the log driver nor the dam owner is paramount to the right of the other. Each is bound to the other simply by the rule of reasonable use; and that rule requires simply that each shall be reasonably accommodating to the other in allowing the use of the stream which the other may require in the reasonable conduct of his pursuits upon the river, and each as against the other, without unreasonable interference. Brisbine v. St. Paul & S.C.R. Co., supra; G.S. 1894, § 2386; Morrill v. St. Anthony Falls W.P. Co., supra; G.S. 1894, § 2386; Morrill v. St Anthony Falls W.P. Co., supra; Kretzschmar v. Meehan, supra; Middleton v. Flat River, 27 Mich. 533; Dumont v. Kellogg, 29 Mich. 420, 423; Cary v. Daniels, 8 Metc. (Mass.) 466, 477; Hayes v. Waldron, 44 N.H. 580; Mayor v. Appold, 42 Md. 442, 456; Platt v. Johnson, 15 Johns. 213; Rindge v. Sargent, 64 N.H. 294; Red River R.M. v. Wright, 30 Minn. 253; Pinney v. Luce, 44 Minn. 367; Angell, Watercourses, §§ 541a, 546; Washburn, Easem. § 11, p. 317; Gould, Waters, §§ 95-97; Wood, Nuis. §§ 465, 481, 482; Page v. Mille Lacs Lumber Co., 53 Minn. 492, 500; Lancey v. Clifford, 54 Me. 487, 489; Davis v. Winslow, 51 Me. 264, 291; Veazie v. Dwinel, 50 Me. 479, 487; Foster v. Searsport, 79 Me. 508, 510; Pearson v. Rolfe, 76 Me. 380; Stratton v. Currier, 81 Me. 497; Harrington v. Edwards, 17 Wis. 604, 605; A.C. Conn Co. v. Little Suamico, 74 Wis. 652, 656; White River v. Nelson, 45 Mich. 578, 583; Buchanan v. Grand River, 48 Mich. 364, 366; Pratt v. Brown, 106 Mich. 628, 633; Gulf v. Walker, 132 Ala. 553; Weise v. Smith, 3 Or. 445; Doucette v. Little Falls Imp. & Nav. Co., 71 Minn. 206, 210; Coyne v. Mississippi & R.R. Boom Co., 72 Minn. 533, 535; Reeves v. Backus-Brooks Co., 83 Minn. 339, 342; Woodbury v. Day, 24 Minn. 463.

Koon, Whelan & Bennett, for respondent.

Assuming said stream was merely floatable, appellant's failure to equip said dam with means and appliances to guide logs into the sluiceways, and to open and furnish appliances for opening the same will bar its recovery herein. 16 Am. & Eng. Enc. (1st Ed.) 242; Gould, Waters, §§ 107, 110; Arundel v. M'Culloch, 10 Mass. 70; Pearson v. Rolfe, 76 Me. 380, 381 (brief of counsel); Knox v. Chaloner, 42 Me. 150; Angell, Watercourses, § 554, note 2; Gniadck v. Northwestern Imp. & B. Co., 73 Minn. 87, 89; In re Minnetonka Lake Imp. Co., 56 Minn. 513; Veazie v. Dwinel, 50 Me. 479, 490. Statutes providing for the erection of drawbridges, or of dams with chutes or locks, over navigable waters, are construed strictly, like all public grants, and in favor of the pre-existing right of navigation. Gould, Waters, § 135; Sutherland, St. Cons. § 366; Hannibal & St. J.R. Co. v. Missouri R.P. Co., 125 U.S. 260.

Appellant in erecting, maintaining and operating said dam violated both its common-law and statutory duty to respondent; Page v. Mille Lacs Lumber Co., 53 Minn. 492; Veazie v. Dwinel, supra.

Appellant in erecting, maintaining and operating said dam was guilty of negligence which will bar its recovery in this action. St. Cloud W.P. & M. Co. v. Mississippi & R.R. Boom Co., 43 Minn. 380; Miller v. Sherry, 65 Wis. 129; Lilley v. Fletcher, 81 Ala. 234; Huff v. Kentucky (Ky.) 45 S.W. 84; Newbold v. Mead, 57 Pa. St. 487, 491; Gates v. Northern, 64 Wis. 64.

Said stream was public and navigable generally at the site of said dam, which was a public nuisance. Respondent had a right to drive his logs past the same in the manner complained of. The Montello, 20 Wall. 430, 439; Miller v. Mayor of New York, 109 U.S. 385, 395; Escanaba Co. v. Chicago, 107 U.S. 678; Pound v. Turck, 95 U.S. 459; Gould, Waters, §§ 34, 108-110; Olive v. State, 86 Ala. 88; Angell, Watercourses, § 563; Gould, Waters § 121; Cook v. Kendall. 13 Minn. 297 (324); Thornton v. Webb, 13 Minn. 457 (498); Hickok v. Hine, 23 Oh. St. 523; Walker v. Allen, 72 Ala. 456; Wood v. Fowler, 26 Kan. 682; Broadnax v. Baker, 94 N.C. 675; St. Anthony Falls W.P. Co. v. St. Paul W. Commrs., 168 U.S. 349; Lancey v. Clifford, 54 Me. 487; Knox v. Chaloner, 42 Me. 150, 155; Kretzschmar v. Meehan, 74 Minn. 211; Gniadck v. Northwestern Imp. & B. Co., supra; In re Minnetonka Lake Imp., supra; St. Paul, S. & T.F.R. Co. v. First Div. St. P. & Pac. R. Co., 26 Minn. 31; Everson v. City of Waseca, 44 Minn. 247; Wait v. May, 48 Minn. 453; Weaver v. Mississippi & R.R. Boom Co., 28 Minn. 534; School District v. Neil, 36 Kan. 617; 2 Story, Eq. Jur. §§ 920-925; 3 Pomeroy, Eq. Jur. § 1349; Wood, Nuis. (2d Ed.) §§ 824-825, 645-646, 732-741; Bishop Non-Cont. Law, §§ 427-432; Page v. Mille Lacs Lumber Co., supra; Aldrich v. Wetmore, 52 Minn. 164.

OPINION

LEWIS, J.

Appellant owned the riparian lands on both sides of the Red Lake river, in Crookston, and a dam constructed at that point. Respondent, a citizen of Winnipeg, on June 6, 1899, owned a large quantity of logs that were collected in the river at a point about five hundred feet above the dam. Respondent opened the boom, and allowed the logs to float down the stream over the dam, without any attempt on his part, and without any effort on the part of appellant, to direct or confine them to the sluiceways. The dam was considerably injured at different places, and this action was brought to recover damages arising therefrom. The court found the damages to be $3,450, but ordered judgment for respondent.

The assignments of error present only one question, viz.: Do the findings of fact justify the conclusion of law and judgment for respondent? If not, do the findings of fact entitle appellant to judgment for the amount of damages found? Appellant submits the case to this court wholly upon these questions of law. The findings are apparently somewhat conflicting, and, in order to properly understand their bearing and relation to the issues in the case, it will be necessary to examine them in some detail:

The court finds:

2, 3. That appellant was the owner of the riparian lands and dam, and of the flowage rights in the stream, and, in connection with its predecessor, had been in exclusive possession thereof for more than fifteen years prior to this action, and ten in connection therewith maintained an electric and power plant.

5, 6 7. That from 1872 to 1875, Red Lake river, in its natural condition, was capable of being profitably used for transportation and commerce for about two-and-a-half months each season, but that since 1875 it has not been, and could not have been, profitably used for such...