Hopkins v. Butte & M. Commercial Co.
| Decision Date | 17 July 1893 |
| Citation | 33 P. 817,13 Mont. 223 |
| Parties | HOPKINS v. BUTTE & M. COMMERCIAL CO. |
| Court | Montana Supreme Court |
Appeal from district court, Cascade county; Charles H. Benton Judge.
Action by John W. Hopkins against the Butte & Montana Commercial Company for causing an overflow of plaintiff's land. From a judgment for plaintiff, defendant appeals. Reversed.
Arthur J. Shores, for appellant.
Leslie & Downing, for respondent.
The respondent, who was plaintiff below, alleges in his complaint that he is the owner of a ranch in Cascade county, and engaged thereon in raising grass, wheat, oats, vegetables etc.; that a certain stream, known as "Deep Creek," flows through his said ranch; that in the month of July 1891, the appellant (defendant below) was engaged in floating logs down said stream to its mills, located at the city of Great Falls; that the appellant had theretofore erected large dams or reservoirs on said stream, above the lands of respondent, for the accumulation of water to assist in floating said logs when the water was low in said stream that appellant had cut and placed in said stream, above the lands of respondent, a large quantity of logs to be floated down said stream to its mills; that said logs had formed a jam or boom in said stream that obstructed the natural flow of the water therein, and, backing up the water in large quantities above the lands of respondent, so that the jam, gorge, or boom, was suddenly released, and caused said stream to swell and overflow its banks, submerging respondent's lands, and by means thereof caused quantities of muddy water, logs, rafts, rubbish, and dirt to flow over and upon respondent's lands, damaging the lands, crops, fences, etc., of respondent. The second count in the complaint charges substantially the same facts as above, and in addition thereto, after alleging that said logs formed a jam, etc., in said stream above respondent's lands, alleges that "the defendant [appellant] wrongfully, through its agents and servant, suddenly released said water, which caused said stream to rise above the level thereof, and that by reason thereof plaintiff's [respondent's] land was submerged," etc., and by reason thereof respondent was damaged. The appellant filed a general demurrer to the complaint, which was overruled by the court, and appellant excepted. Answer and replication were filed, the answer denying all the allegations of the complaint. The cause was tried to a jury, and verdict and judgment rendered for respondent. Appellant filed its motion for new trial, which was overruled, whereupon appellant appealed from the order overruling motion for new trial, and from the judgment of the court below.
On the trial of the case, counsel for appellant requested the court to give the jury the following instruction: ...
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