Hueston v. Mississippi & Rum River Boom Company
| Decision Date | 17 May 1899 |
| Docket Number | 11,502 - (55) |
| Citation | 79 N.W. 92,76 Minn. 251 |
| Parties | WILLIAM HUESTON v. MISSISSIPPI & RUM RIVER BOOM COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Anoka county to recover $2,100 damages for overflowing plaintiff's land. The case was tried before Tarbox, J., and a jury, which rendered a verdict in favor of plaintiff for $676.54; and from a judgment entered in pursuance of the verdict, defendant appealed. Affirmed.
Trespass -- Vendee in Possession Entitled to the Damages.
A vendee in possession of land under an executory contract of sale, being the equitable owner of the premises (the vendor holding the legal title merely as security for the unpaid purchase money), is entitled to recover the whole of the damages to the land resulting from a trespass thereon.
Boom Company's Works -- Overflow on Two Occasions -- Pleading One Cause of Action.
Certain works erected and maintained by the defendant in the Mississippi river caused a log jam, first in April and again in July, which in each instance raised the water of the river so as to overflow and damage plaintiff's premises. Held that this was in the nature of a continuing trespass by the same act, although resulting in damage on two different occasions, and might be pleaded as a single cause of action.
Measure of Damages -- Evidence.
In an action for such a trespass, while the measure of plaintiff's damages is the difference between the value of the premises immediately before and immediately after the infliction of the injury, it is competent to introduce evidence of this ultimate fact, and also particular evidence of the nature and amount of the different items of damage which go to make up the whole.
Closing Mill -- Loss of Profits Question for Jury.
The overflows referred to compelled the plaintiff to shut down a mill which he was operating on the premises. The evidence considered, and held, that it made a case for the jury on the question of the loss of profits while the mill was shut down.
Negligence -- Taking Private Property without Compensation.
The ground of defendant's liability was not that it was negligent in the construction or operation of its works, but that it had no right to thus injure or "take" the plaintiff's property without first acquiring the right by purchase or condemnation.
John B Atwater, for appellant.
The measure of damages for injury to the meadow land was the difference between its value before and after the injury. Ward v. Chicago, M. & St. P. Ry. Co., 61 Minn. 449. It was improper to allow testimony as to the value of the use of the land during the season of 1897, or as to the ultimate value of the crop then growing. See Sparrow v. Pond, 49 Minn. 412. The correct measure of damage for injury to the mill was the difference in value of the items of machinery injured before and after the injury, and the cost of repairing the foundations and tail-race. Benjamin v. Hillard, 23 How. 149. It was improper, after witnesses had testified under this rule, to permit them to testify to the difference in value of the entire property before and after. Damages were erroneously assessed as to two separate trespasses under a complaint which set up only one cause of action. The evidence on the question of plaintiff's loss of profits was improper, since he kept no books of account. Evidence of loss of profits must be definite and certain. Goebel v. Hough, 26 Minn. 252; Simmer v. City of St. Paul, 23 Minn. 408. Evidence as to orders for work was inadmissible. Williams v. Wood, 55 Minn. 323; Cushing v. Seymour, Sabin & Co., 30 Minn. 301. Plaintiff having failed to show negligence was not entitled to recover. Coyne v. Mississippi & R.R. Boom Co., 72 Minn. 533. Plaintiff as vendee under an executory contract was not entitled to recover damages for injury to the meadow. The right of action, if any, was in the vendor. 3 Sutherland, Dam. § 865; Tabor v. Robinson, 36 Barb. 483; Jones v. Taylor, 1 Dev. (N.C.) 434.
William P. Roberts, for respondent.
Possession is all that is necessary to entitle one to recover against a wrongdoer for injury to property, title being presumed from the possession. Todd v. Jackson, 26 N.J.L. 525; Reed v. Price, 30 Mo. 442; Illinois v. Cobb, 94 Ill. 55; Honsee v. Hammond, 39 Barb. 89; Carner v. Chicago, St. P., M. & O. Ry. Co., 43 Minn. 375, 377. Any evidence and any fact which legitimately bears on the value of the property is to be considered. King v. Minneapolis U. Ry. Co., 32 Minn. 224. Damages for loss of profits may be recovered. Goebel v. Hough, 26 Minn. 252, 256. The injury was to a regular and well-established business for a definite time. Evidence of the orders which plaintiff had on hand was proper. Cargill v. Thompson, 57 Minn. 534, 547. Claims for damages to the same property by the same means and the same party need not be separated. Though defendant had the right under its charter to drive piles, erect piers, and swing booms, it could not do this, so as to take private property, without compensation. Weaver v. Mississippi & R.R. Boom Co., 28 Minn. 534; McKenzie v. Mississippi & R.R. Boom Co., 29 Minn. 288.
In 1897 the plaintiff, as vendee under an executory contract of sale, was in possession of a tract of land in Anoka county bordering on the Mississippi river, a tributary of which, called "Rice Creek," ran through the land. On this creek there was a mill for grinding flour and feed, operated by water power furnished by the creek. The mill had been operated by the plaintiff for some years, and had an established line of custom. About six acres of plaintiff's land near the river were used and were especially adapted for pasturage. The balance of the land was used in connection with the mill and the dam. About five-eighths of a mile below plaintiff's land there was an island in the Mississippi river, about half a mile long. Prior to 1897 the defendant built a boom from this island to the east bank of the river, and had established there its assorting gap for the purpose of distributing logs to the mills in Minneapolis. The defendant had also put in a line of piling from the upper end of the island to the west bank of the river, for the purpose of running logs into the boom.
As a result of the erection and maintenance of these works, about April 1, 1897, a large log jam was formed, which caused the water to overflow plaintiff's land, and come up into his mill, so as to injure it, and prevent him from operating it for some nine days. About July 1, another jam occurred from the same cause, which again flooded plaintiff's land and mill, resulting in further damage to, and loss of the use of, the mill, and destroying and killing the grass on the pasture land to such an extent that it would require one or two years to restore it. Another consequence of this overflow was that when it receded it left sand and other debris on the pasture land. There is really no controversy but that the construction and maintenance of defendant's works caused these overflows, and the consequent damage to plaintiff's premises. There was also ample evidence that this was not the result of some extraordinary and unusual cause, which could not have been reasonably anticipated, but that it was a thing which, in view of the past history of the river, might be reasonably expected to occur at intervals, more or less frequent, as the result of maintaining these...
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