Doyle v. Pelton

• Citation: 134 Mich. 398,96 N.W. 483
• Court: Michigan Supreme Court
• Decision Date: 15 September 1903
• Parties: DOYLE et al. v. PELTON et al.

96 N.W. 483

134 Mich. 398

DOYLE et al. v. PELTON et al.

Supreme Court of Michigan

September 15, 1903

Error to Circuit Court, Cheboygan County; Frank Shephard, Judge.

Action by William H. Doyle and another against David C. Pelton and another. From a judgment in favor of defendants, plaintiffs bring error. Affirmed.

Cross & Harpster, for appellants.

Frost &amp Sprague, for appellees.

CARPENTER J.

Under a declaration on the common counts in assumpsit, plaintiffs sought to recover, in the circuit court for the county of Cheboygan, for expenses incurred in moving logs of defendants in the channel of Pine river, in the counties of Mackinac and Chippewa. The testimony of plaintiffs tended to show that in order to use said river for the purpose of floating their own logs, they were compelled to and did move the logs of defendants; that they did not drive defendants' logs, but simply moved them to one side, so as to make a channel through which their own logs could pass. It was the claim of plaintiffs that, by reason of the above-mentioned facts, a cause of action accrued in their favor against defendants which, according to section 5075, Comp. Laws 1897, could be enforced under their declaration. The trial court decided that this cause of action could not be enforced under a declaration on the common counts in assumpsit, and directed a verdict for the defendants.

This decision was correct, not only for the reason that plaintiffs should have stated in their declaration the facts which constitute their cause of action (see Chicago &amp Northeastern R. Co. v. Sturgis, 44 Mich. 538, 7 N.W. 213; Anderson Carriage Co. v. Pungs [Mich.] 95 N.W. 985), but also for the reason that plaintiffs' cause of action could not be enforced in an action of assumpsit. The case of Chapman v. Keystone Lumber & Salt Mfg. Co., 20 Mich. 358, is not applicable. In that case it was decided that plaintiff, who in order to drive his own logs was compelled to, and did, break a jam of logs made by defendant, and drive said logs, was entitled, by section 5075, Comp. Laws 1897, to recover his expenditure in an action of assumpsit. The section relied upon reads as follows: 'If any person or persons shall put or cause to be put into any * * * river * * * of this state, any logs, * * * and shall not make adequate provision and put on a sufficient force of men for breaking jams of such logs, * * * or for running, driving or clearing the same from the banks or shores of such * * * river * * * and shall thereby * * * hinder or delay the running of any logs, timber, lumber, cedar poles or other forest products in such waters, it shall be lawful for any other person * * * engaged in floating logs, timber, lumber or other forest products in such * * * river * * * to cause such jams to be broken and such logs * * * to be run, driven and cleared from the banks of such * * * river * * * at the cost and expense of the person or persons owning the same; and such owner or...