Harold v. Jones

• Decision Date: 04 February 1889
• Citation: 5 So. 438,86 Ala. 274
• Parties: HAROLD ET AL. v. JONES ET AL.
• Court: Alabama Supreme Court

5 So. 438

86 Ala. 274

HAROLD ET AL. v. JONES ET AL.

Supreme Court of Alabama

February 4, 1889

Appeal from circuit court, Escambia county; JOHN P. HUBBARD, Judge.

This action was brought by Jones and others against Harold Bros. &amp Scott for damages caused by obstructing the navigation of a stream. The defendant asked the following charge, which was in writing: "The court charges the jury that the defendants had a reasonable time in which to remove any obstruction caused by their reasonable and proper use of the stream, and if the plaintiffs negligently run into said obstruction, without giving time for defendants to remove it and thereby suffered loss or injury, they cannot recover because of their own contributory negligence." The court refused to give this charge, whereupon the defendants duly excepted. There was verdict and judgment for the plaintiffs and the defendants appeal.

M. A. Rabb, G. R. Farnham and John Gamble, for appellants.

CLOPTON J.

The plaintiffs and defendants were engaged in the business of floating and rafting timber over the waters of the Sepulga creek, to the Conecuh river, and thence to Ferry Pass, Fla., which was the place of market. When the water in the creek was at low stage, the timber was prepared and placed in booms for safe-keeping and preservation, until the water was in condition fit for floating. Plaintiffs' boom was above the boom of defendants. The defendants had several thousand pieces of timber in the creek, which had jammed, or, as the witnesses designate it, had formed "jacks." Early in July, 1887, the plaintiffs began to raft their timber, there being a rise of the water in the creek, and were delayed in reaching the point of destination by reason of the jams, which had to be broken. They claim that they were put to expense in breaking the "jacks," and that the price of timber declined during the delay, whereby they suffered damages, to recover which they bring this action. The gravamen of the action is that the defendants obstructed the creek by the jams, and kept and continued the obstruction, whereby its navigation was destroyed for an unreasonable time. At the request of the plaintiffs, the court charged the jury "that due diligence means enough hands to constitute force enough to break the jacks, if they were formed," and refused to instruct the jury, as requested by defendants, that the law only required reasonable diligence to prevent the formation of "jacks," or to break or remove them when formed, and if the evidence shows that defendants exercised reasonable and due diligence to prevent their formation, or to remove or break them after they were formed, then they are not guilty of obstructing the stream so as to render them liable for damages in this action.

By an act of the general assembly, approved April 19, 1873, Sepulga creek and other streams in the counties of Conecuh and Escambia "were made, constituted, and declared to be public highways for all the purposes of floating and rafting lumber, logs, and timber upon their waters." Acts 1872-73, p. 135. The right to use water-courses as highways and the right to use highways upon land, are analogous, and depend on the same general principles. The general rule is not controverted that an individual may maintain an action to recover damages, who has suffered special injury in consequence of obstructions to a highway, whether upon land or water, which constitute public nuisances. Any and all of the public have an equal right to the reasonable use of a highway, but the enjoyment by one necessarily interferes to some extent, for the time being, with its free and unimpeded use by others. No precise definition of what constitutes a reasonable use, adapted to all cases, can be laid down. Whether or not any particular use is reasonable depends on the character of the highway, its location, and purposes, and the necessity, extent, and duration of the use, under all the attendant and surrounding circumstances. The general limitations upon the use are that when it constitutes an obstruction to the highway, it must be of a partial and...