Huff v. Kentucky Lumber Co.

• Decision Date: 18 March 1898
• Citation: 45 S.W. 84
• Parties: HUFF v. KENTUCKY LUMBER CO.
• Court: Kentucky Court of Appeals

45 S.W. 84

HUFF v. KENTUCKY LUMBER CO.

Court of Appeals of Kentucky.

March 18, 1898

Appeal from circuit court, Harlan county.

"Not to be officially reported."

Action by W. C. L. Huff against the Kentucky Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

J Smith Hays and S. B. Dishman, for appellant.

Tinsley & Faulkner, for appellee.

PAYNTER J.

The appellant, Huff, owned a mill dam, which was constructed across the Clover fork of Cumberland river. It is a navigable and floatable stream far some 20 miles above the mill dam. The Kentucky Lumber Company owned saw logs, and had no other convenient means of getting them to market except to float them down the Clover fork of Cumberland river. The appellant sought to recover damages from the appellee because the logs were floated down the stream on low tides, and, when forced over the dam, they remained in the whirlpool below, caused by the fall of the water over the dam, thus doing damage to the dam, the mill house, and fore bay. The defendant denies that it carelessly and negligently put the logs in, and floated them down, the stream. It appears from the evidence in this case that logs cannot be floated down the stream in rafts. The appellee could not wait until the tide was at a sufficient height to carry the logs over the dam before they were put in the river. If it did, it would lose the benefit of the tide. The only practical way was to roll them in the river when there was no tide, and then float them out when the tide came.

We think the appellee had the right to the use of the stream for the purpose of floating its logs, and could not be held liable for damages to the dam of the appellant, unless it was guilty of negligence in the manner of putting the logs in and floating them down the stream. There seems to have been no damage done to the plaintiff's property while the logs were above the dam. The damage resulted after the logs had passed over the dam, and gone into the whirlpool, which was produced by the water flowing over the dam. The lower side of the dam is perpendicular. The fall of water and the passage of logs and timber over the dam crumbled and wore the rocks in the bed of the stream, and made a hole four or five feet deep below the dam. In this hole water gathered, and caused the logs to remain there for some time after they had passed over the dam, and thus caused the injury to appellant's property....