Holden v. Robinson Mfg. Co.

• Decision Date: 12 April 1876
• Citation: 65 Me. 215
• Parties: CYRUS H. HOLDEN v. ROBINSON MANUFACTURING COMPANY.
• Court: Maine Supreme Court

65 Me. 215

CYRUS H. HOLDEN v. ROBINSON MANUFACTURING COMPANY.

Supreme Judicial Court of Maine.

April 12, 1876

January 1876.

ON MOTION AND EXCEPTIONS.

CASE for obstructing the stream passing from Thompson pond to the Little Androscoggin river in Oxford, by the defendant's dam, and hindering the passage of the plaintiff's logs. On the question of the floatability of the stream in its natural state, evidence was introduced by both parties. The verdict was for the plaintiff, for $175.23, which the defendants moved to have set aside as against law and evidence. They also filed exceptions to the exclusion of certain testimony of the witness, Holbrook, offered by the defendants, which appears in the opinion.

J J. Perry, for the defendants.

A A. Strout & G. F. Holmes, for the plaintiff.

DANFORTH J.

The defendant corporation had rebuilt, and was the owner of, a dam across the stream leading from Thompson pond to Little Androscoggin river. The plaintiff, desiring to drive some logs, which he had cut upon land bordering upon said pond to the river, had got them as far as the dam, and found that an insuperable obstacle to his further progress by water. Passage through the dam being refused by the defendant's agent, the logs were taken the remainder of the way, at an alleged increase of expense, by land. This increased expense is the object of this action. Hence the issue between the parties is, whether the stream in its natural state was floatable and a public highway or otherwise with its incidental question of damages.

Upon this issue certain testimony was offered by the defendant which upon objection was excluded. The dam in question was called Robinson's dam.

The first exception is to the exclusion of testimony from Seth I. Holbrook, that " when Robinson was hauling the plaintiff's logs from Robinson's dam down to the Little Androscoggin river, in my opinion it would not have been possible to have driven these logs, using only the natural waters of the stream, from Robinson's dam down the stream into the Little Androscoggin river." The exclusion of this testimony was correct. Were it a statement of the fact, instead of an opinion, it would still have been immaterial. It relates to a particular time, when, perhaps, by reason of a drought there might not have been sufficient water, though at other seasons proper for driving logs there might have been an abundance.

In order to make a stream floatable, it is not necessary that it should be so at all seasons of the year. It is sufficient if it have that character at different periods with reasonable certainty and for such a length of time as to make it profitable for that purpose. Nor would it in any degree tend to mitigate the damages. The plaintiff's logs were at the dam. It does not appear that there was any want of water to get them through. No question is made upon this point. If, therefore, the plaintiff was rightfully there with his lumber, he should have been permitted to pass at once, or without unnecessary delay, regardless of any conjectural difficulties he might afterwards meet with, and, in the absence of such permission, he would be entitled to recover at least the difference in expense between taking it through the dam by water and taking it round it by land.

But this testimony is a matter of...