French v. Connecticut River Lumber Co.
| Decision Date | 23 November 1887 |
| Citation | 14 N.E. 113,145 Mass. 261 |
| Parties | FRENCH v. CONNECTICUT RIVER LUMBER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.C. Hammond, for plaintiff.
The plaintiff submits that loss of business is the necessary and probable result of the acts of the defendant in cutting off access to his premises from a public way of the Connecticut river. Obstructing the landing-place of a summer resort would seem to be a natural and proximate cause of an ensuing loss of business at such summer resort. Cooley, Torts, 68; Lyon v. Fish-Mongers' Co., L.R. 1 App. 662; Rose v. Groves, 5 Man. & G. 613; Jeveson v Moor, 12 Mod. 262; Dobson v. Blackmore, 9 Q.B. 991; Hartley v. Herring, 8 Term R. 130; Marsh v Billings, 7 Cush. 322; Doyle v. Dixon, 97 Mass 208, 213; Brayton v. Fall River, 113 Mass. 218; Gould, Wat. §§ 123, 124, Ang. Water-Courses, § 567; Stetson v. Faxon, 19 Pick. 147; Wesson v. Iron Co., 13 Allen, 95. This cause and injury are not too remote, the one from the other. The fact that another road leading in other directions, is available to the plaintiff is immaterial. The instruction given by the court respecting any right to float logs loose under cover of the charter of the Holyoke & Northampton Boom & Lumber Company was sufficiently favorable to the defendant. The driving of the logs down the river loose, and not bound in rafts, was negligence, because forbidden by law. Harrigan v. Lumber Co., 129 Mass. 580, Pub.St. c. 94, § 5; St.1882, c. 274; St.1883, c. 183, § 2. Nothing appears as to any acts done under the Statutes of 1882, c. 274, § 2, and the driving of logs loose remained an illegal act, as it had been for 66 years. Pub.St. c. 94,§ 5; Gen.St. c. 78, § 5; Rev.St. c. 52, § 3; St.1814, c. 150. The whole was repealed by St.1883 and 1814, leaving the plaintiff to his common-law rights. The Statutes of 1871, c. 362, do not enact that logs may be run loose and not bound in rafts, and did not repeal Gen.St. c. 78, § 5. St.1883, c. 183, was not enacted until after the torts complained of were done.
D.W. Bond, for defendant.
Two questions are raised by the bill of exceptions: one as to the right of the defendant to float logs down the Connecticut river without forming them into rafts, and the other as to the rule of damages. As to the right of the defendant to float logs down the Connecticut river without forming them into rafts, see Pub.St. c. 94, § 5; Acts 1871, c. 362; Acts 1882, c. 274; Acts 1883, c. 183. By the repeal of the act of 1883, and the amendment of section 5 of Pub.St. c. 94, contained in the act of 1883, there was no prohibition against driving logs in the Connecticut river without forming them into rafts. At common law, any person has a right to float logs down a navigable river. Gould, Wat. 108. The right to float logs down the river without forming them into rafts, as claimed by the defendant, is only important upon the question of damages. If the defendant had that right, then the floating of logs in that way would not be a violation of law, and therefore was not prima facie negligence on the part of the defendant. Harrigan v. Lumber Co., 129 Mass. 580. The damages to the business cannot be recovered. The acts complained of were done in what is considered in law a public way. See Blood v. Railroad Co., 2 Gray, 137. So far as the acts of the defendant were an interference with the public use of the river, no damage can be recovered by the plaintiff; the only remedy is by indictment. Lawrence v. Fairhaven, 5 Gray, 110; Brightman v. Fairhaven, 7 Gray, 271; Harvard College v. Stearns, 15 Gray, 1; Williard v. Cambridge, 3 Allen, 574; Iron-Works v. Railroad Co., 5 Allen, 221, Blackwell v. Railroad Co., 122 Mass. 1; Thayer v. Railroad, 125 Mass. 253; Breed v. Lynn, 126 Mass. 367. It is only when the defendant interferes with the private right of the plaintiff that a recovery can be had. Com. v. McCann, 97 Mass. 580. The plaintiff cannot recover for any damage sustained by him by reason of an obstruction to the navigation of the Connecticut river caused by the defendants. Blood v. Railroad, 2 Gray, 137; Brightman v. Fairhaven, and other cases cited, supra. The rule is the same with reference to an obstruction which prevents or hinders others coming to the plaintiff's place of business, and thereby causing an injury to his business. Nothing was done by the defendant upon the plaintiff's property except as it was done in the Connecticut river. Wesson v. Iron Co., 13 Allen, 95. See Harvard College v Stearns, 15 Gray, 1; also Rose v. Groves, 5 Man. & G. 613. The obscuring of a building by means of an obstruction, and the injury to the building thereby, would not be urged now as a ground for damage. Preventing access to the plaintiff's premises has been held insufficient to support an action. No permanent injury to the plaintiff's estate can be recovered in this case. The plaintiff is a mortgagor in possession, and cannot recover damages for a permanent injury to the estate. James v. Worcester, 141 Mass. 369, 5 N.E. 826. See Loker v. Damon, 17 Pick. 284; Goddard v. Barnard, 16 Gray, 205. The same rule applies in cases of torts as in contracts. Milton v. Steam-Boat Co., 37 N.Y. 210.
OPINION
The plaintiff owned and kept a public-house and grounds on the summit of Mt. Holyoke, and in connection therewith owned a way to the Connecticut river, and a landing- place on the river, by which persons had access to his house from the river. The defendant floated large quantities of logs down the river. The river at the plaintiff's landing was obstructed by sand which was caused to be deposited there by the defendant's boom above, and by logs which were stranded there while being floated down the river loose, and not in rafts, by the defendant. The plaintiff contended, and the court ruled, that the defendant had no right to float logs down the river except in rafts. We think that this ruling was right. It may be assumed that the Connecticut river is a public highway in which the public have a right to float logs, either singly or connected together, unless prohibited by statute. To sustain the ruling it must appear that some statute prohibited the floating of logs except in rafts for the whole time during which the acts relied on by the plaintiff were committed. The period alleged in the declaration, and to which the evidence applied, is from June 1, 1880, to February 5, 1883, Gen.St. c. 78, § 5, and its re-enactment in Pub.St. c. 94, § 5, was in force until May 27, 1882. That statute provided that "no person shall cause or permit to be driven or floated down the Connecticut river any masts, spars, logs, or other timber, unless the same are formed and bound into rafts, and placed under the care of a sufficient number of persons to govern and manage the same, so as to prevent damage thereby." A similar statute had been in force since 1815. Rev.St. c. 52, § 3, St.1814, c. 150; St.1882, c. 274, authorized the defendants to construct a boom between the confluence of the Chicopee and Connecticut rivers, and the ferry next above, which is several miles below the lower of the booms before mentioned. The second section amended Pub.St. c. 94, § 5, so that it should not apply to that portion of the Connecticut river above its confluence with the Chicopee river. The same section provided for proceedings before the county commissioners by which the damages accruing to the owners of ferries and boats by the floating by the defendant of logs, etc., not in rafts should be determined, and provided that "in case neither party petitions to have such damages fixed, any person floating or driving masts, spars, or logs upon said river not formed into rafts and attended as provided in said section five, shall pay all damages done by said floating or driving." It does not appear that any party has ever petitioned for damages. St.1883, c. 183, which modifies these provisions, did not take effect until after this action was commenced. To control the plain provisions of these acts the defendant relies upon St.1871, c. 362, by which the Holyoke & Northampton Boom & Lumber Company was incorporated, with authority to construct a boom where the defendant's boom next below the plaintiff's landing-place now is. The defendant contends that this statute gave by implication to the Holyoke & Northampton Lumber Company the right to float logs not in rafts to its boom, and that it has acquired the right from that company. The court below ruled that the defendant could not justify its acts under authority which the former corporation may have had. As we think that this ruling was correct, there is no occasion to consider whether there is any ground for the contention that the statute gave any...
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