Gulf Red Cedar Co. v. Walker

• Decision Date: 15 January 1902
• Citation: 132 Ala. 553,31 So. 374
• Parties: GULF RED CEDAR CO. v. WALKER.
• Court: Alabama Supreme Court

31 So. 374

132 Ala. 553

GULF RED CEDAR CO. v. WALKER.

Supreme Court of Alabama

January 15, 1902

Appeal from circuit court, Jackson county; A. H. Alston, Judge.

Action by Martin Walker against the Gulf Red Cedar Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. E Brown, for appellant.

S. W Tate and Martin & Bouldin, for appellee.

SHARPE J.

Neither defendant's right of floatage nor plaintiff's right to maintain a milldam on Paint Rock river has been questioned or made a subject of dispute in this cause. Assuming they had concurrent rights, the one to float timber and the other, as a mill and land owner, to have his property protected from unnecessary and damaging displacement of water and obtrusions of floated timber, defendant was under the duty to use ordinary care in conducting its business, in order that injury to plaintiff's property from such causes might be averted. Lumber Co. v. Keel, 125 Ala. 603, 28 So 204; Witheral v. Booming Co., 68 Mich. 48, 35 N.W 758, 13 Am. St. Rep. 325; Koopman v. Blodgett, 70 Mich. 610, 38 N.W. 649, 14 Am. St. Rep. 527.

In the record there is evidence which, though disputed, tends to show that defendant, in floating timber during a flood, suffered it to accumulate against some boom posts near plaintiff's premises in a large mass, which broke part of his dam, and diverted water from the course of the stream, whereby plaintiff's land was washed, his fence demolished, and driftwood was piled and scattered in his field. From this, and notwithstanding conflicting evidence, a case was made for the jury, within the principle of Lumber Co. v. Keel, supra, where defendant's predecessor in the same business was held liable for injuries similar to those here involved.

Injuries done in the winter and spring of 1899 and 1900 to plaintiff's land from drifted timber and from washings are well within the complaint's averments. If caused by negligence, as the jury was at liberty to find, those injuries merited an award of at least nominal damages, notwithstanding a lack of data from which to fix the amount of damages actually resulting from the drift referred to in the first refused charge, or from washing at the particular places mentioned in the second refused charge, or at the times stated in the fourth refused charge.

Plaintiff testified defendant "was doing business during '98 and spring of '99 floating timber down Paint Rock river.'' The court...