Des Jardins v. Thunder Bay River Boom Co.

• Court: Michigan Supreme Court
• Writing for the Court: [95 Mich. 141] LONG, J.
• Citation: Des Jardins v. Thunder Bay River Boom Co., 54 N.W. 718, 95 Mich. 140 (Mich. 1893)
• Decision Date: 10 March 1893
• Parties: DES JARDINS et al. v. THUNDER BAY RIVER BOOM CO.

54 N.W. 718

95 Mich. 140

DES JARDINS et al. v. THUNDER BAY RIVER BOOM CO.

Supreme Court of Michigan

March 10, 1893

Error to circuit court, Alpena county; Robert J. Kelley, Judge.

Action by Damas Des Jardins and another against the Thunder Bay River Boom Company to recover for damages to land alleged to belong to plaintiffs, and for crops destroyed through defendant's alleged negligence. Judgment for defendant. Plaintiffs appeal. Affirmed.

J. D Turnbull, for appellants.

Frank Emerick, for appellee.

LONG, J.

On the trial of this cause the jury found in favor of the defendant. It appears that the plaintiffs, in April, 1889, purchased upon contract 87 1/2 acres of land, now situate in the city of Alpena. The land is somewhat over half a mile in length north and south and 80 rods wide, the south end being bounded by the Thunder Bay river. The river at a point near the east boundary formerly made a short detour to the north into the land, and then returned to a point only a few rods from where it had departed from its crossing, thus forming an oxbow including about 7 acres of land, and its neck being only about 150 feet wide. Many years ago the water cut a channel across the neck of the oxbow, through which the entire current of the river now runs, leaving dead water in the old channel. The defendant is a corporation organized under the laws of this state as a rafting, running, booming company. Its operations extend over some miles of this river and consist in running all logs delivered to it down the river to various sawmills. It maintains a dam for floating purposes, about six miles up the river from plaintiffs' land. It is used by the defendant when the water gets low in the river for the purpose of floating logs off the rapids in the river, which commence two or three miles above the plaintiffs' land, and extend up to the dam. The water is raised by means of gates in the dam, and is ponded when the river gets low in the summer, to raise the waters on the rapids to float the logs off. The plaintiffs' claim is that during the spring and summer of 1889 the defendant, by means of this dam and its gates and appliances, accumulated and ponded the water of the river, and then let it off in floods, thus raising the water in front of their lands, and causing injury to their grass and pasture lands, hay, crops and potatoes, destroyed their bridge and roadway, and washed away a quantity of their land. The court directed the jury on the trial, substantially, that if the defendant company so raised the waters in the river as to cause it to overflow and destroy the plaintiffs' crops growing upon their premises, the plaintiffs would be entitled to recover for such injury whatever damages the jury might find they had sustained. It is contended by plaintiffs' counsel that the court was in error (1) in refusing to permit plaintiffs to recover for the value of the land destroyed; (2) in refusing plaintiffs' request to charge the jury that under the evidence the plaintiffs were entitled to recover; (3) in permitting defendant to introduce in evidence certain deeds.

1. On the trial, plaintiffs attempted to prove the value of the land washed away and...