J.S. Keator Lumber Co. v. St. Croix Boom Corp.

• Citation: 72 Wis. 62,38 N.W. 529
• Parties: J. S. KEATOR LUMBER CO. ET AL. v. ST. CROIX BOOM CORP.
• Decision Date: 20 June 1888
• Court: Wisconsin Supreme Court

72 Wis. 62

38 N.W. 529

J. S. KEATOR LUMBER CO. ET AL.

v.ST. CROIX BOOM CORP.

Supreme Court of Wisconsin.

June 20, 1888.

Appeal from circuit court, St. Croix county.

This action was brought to recover damages alleged to have been sustained by Walker, Judd & Veazie, in the summer of 1883, by reason of a jam of sawlogs in the St. Croix river, caused by the acts and negligence of the defendant and its booming works, and which damages were transferred to the plaintiffs. It is alleged in the complaint, among other things, in effect, that Walker, Judd & Veazie had for many years been engaged in cutting, hauling, banking, and driving down said river large quantities of saw-logs each year for the purpose of manufacturing the same into lumber at their mills at Marine, on the Minnesota side of the river, and shipping such lumber therefrom, by steam-boats, or barges in tow of steam-boats, and in rafts and floats, to St. Paul, and various places along the St. Croix and Mississippi rivers; that they were merchants at Marine, and transported their goods to and from that place in steam-boats; that they had no other means of transportation; that they owned the steam-boat G. B. Knapp; that in June, July, and August, 1883, the defendant, under its charter from Minnesota, granted February 27, 1856, and February 28, 1870, at a point below Marine, and about three miles above Stillwater, on the Minnesota side of said river, erected and maintained a boom and other obstructions in and entirely across the river, with the full knowledge that the river would thereby be wholly obstructed, and would entirely cut off the navigation of boats thereon, contrary to the provisions of its charter; that the defendant had so obstructed the river in 1880, 1881, and 1882; that, for the five years previously, the usual quantity of logs cut and put into said river above said boom had been from two hundred and fifty to three hundred million feet per year; that in the spring of 1883 the defendant had reasonable cause to believe, and knew, that the quantity of logs to be received in its booms that season would be about three hundred millions feet; that June 13, 1883, the defendant's booms became crowded and jammed with logs; that the same was caused by the careless and negligent handling of said boom, and the logs therein, by the defendant, for the reason that the defendant had neglected, and purposely failed and refused, to make proper preparations for the receiving of said logs, and the assorting of the same, in such a manner as to prevent the obstruction of the navigation of the river, and the channel thereof; that at that time the boom became filled with logs, and so jammed and crowded together that, commencing at a point on the Wisconsin side about three miles above Stillwater, and extending northward to a point not less than five miles above Marine, being a distance of about fifteen miles, the river and channel thereof were filled and obstructed the entire distance mentioned, so that no part of the river between those points could be navigated by steamboats, barges, or other vessels; that the river between those points remained so obstructed and in such a condition that no part of it could be navigated until August 7, 1883, being a period of 55 days; that said jam caused the water to set back and damage the premises of Walker, Judd & Veazie; that said claims for damages were sold and assigned to the plaintiffs. Numerous items of specific damages are alleged, and judgment demanded for $148,500.

The answer consists largely of admissions and denials, and a justification of all it did or neglected under acts of the territory and state of Minnesota, constituting its charter and authority, to-wit, the act of May 17, 1851, incorporating the St. Croix Boom Company; “An act to organize the St. Croix Boom,” of February 27, 1856, and the several amendments and re-enactments thereof, including that of February 28, 1870, whereby the defendant was incorporated and organized; and then, among other things, the answer alleges, in effect, that the St. Croix river is 200 miles in length; that from its junction with the Mississippi, at its mouth, for a distance of 150 miles northerly, it constitutes the boundary line between the states of Minnesota and Wisconsin; that said river has numerous tributaries flowing into it from the east and the west, the most notable of which are named, being 23 in number, all of which are lumbering streams, navigable for the transportation of logs, timber, and lumber,--some of them being more than 100 miles in length, and many having tributaries which are lumbering streams, and navigable for logs; that said river and its tributaries drain an area of country of more than 20,000 square miles in extent; that the same is rich in pine and other timber; that the annual cut of such logs had for the past few years exceeded 400,000,000 feet, the separate owners, grades, and lots of which are distinguished by some 1,700 different marks; that such logs are floated down the rivers in the spring floods, and become intermingled in one common mass; that the St. Croix river is only navigable for Mississippi steam-boats up to the city of Stillwater; that Marine is 12 miles above Stillwater; that from Stillwater to Taylor's Falls, a distance of 30 miles, the same is navigable only for boats of the smallest class used in navigable streams; that even for such boats, save in periods of high water, navigation is at all times precarious and uncertain, and at times substantially impracticable with any sort of boat; that between Stillwater and Taylor's Falls the river is narrow, shallow, abounds in sloughs, islands, sand-banks, and is tortuous, intricate, and hard to navigate; that the navigation thereon is very inconsiderable, and for the last five years had been almost entirely confined to a single boat running regularly between those points; that under its charter it was the duty of the defendant to collect, take charge of, sort, separate, and raft at its boom all logs, timber, and lumber coming down the river to that point; that the foot of its boom was about one mile above Stillwater, and extended up to Titcomb's Landing, which is about five miles above Stillwater and six miles below Marine; that, in the construction and maintenance of said boom, the defendant had employed the highest degree of skill and labor, and adopted the most approved plan for a boom at that point, and operated the same with the highest skill and diligence, and as required by its charter; that it nowhere extended entirely across the river, or interfered with the navigation thereof; that the upper boom mentioned in the charter had, many years before, been abandoned; that from the head of the lake down for about three miles were fixed a large number of booms owned by private parties for the holding of logs; that the log jam of June, 1883, resulted from an unusual rise in the St. Croix and all its tributaries, occurring nearly simultaneously, whereby nearly all the logs therein were driven down said several streams by the owners thereof, including Walker, Judd & Veazie, with the greatest rapidity, and without any fault or agency of the defendant, and the same resulted in filling the river from the head of the defendant's boom upwards for a distance of several miles above Marine; that there was no other closing up of said river during that year; that, during the time, the river was so full of logs from the head of the defendant's boom up the stream that the same could not be navigated by steamboats, but that, during all of that period and that season, a convenient and feasible channel was kept open for steam-boats, barges, and general purposes from the foot of the defendant's boom to the head thereof.

At the close of all the testimony, and on motion of the defendant, the court granted a nonsuit; and from the judgment entered thereon the plaintiffs bring this appeal. The following portions of the defendant's charter were referred to on the argument: “Sec. 11. The said St. Croix Boom Corporation are hereby authorized and empowered to construct, and shall construct, maintain, and keep in good order and repair, as provided herein, two good, substantial booms upon the River St. Croix; one at such points between the head of Cedar bend, so called, and Rock island, as they may select, to be known and designated as the ‘Upper Boom;’ the other at such points between the head of Lake St. Croix and Titcomb's Landing, so called, as they may select, to be known and designated as the ‘Lower Boom.’ And said corporation may further construct, maintain, and keep, between Titcomb's Landing and the landing at Marine Mills, such additional booms as they may deem necessary or convenient for the purpose of holding, controlling, or securing any logs or timber that may float or be driven down the said St. Croix river and its tributaries, and may intercept, stop, and take exclusive possession of any such logs or timber, and secure the same within any of their said booms, whenever said corporation shall deem it prudent or necessary so to do, in which case it shall be the duty of said corporation to drive said logs or timber from said last-named additional booms to and within the limits of said lower boom as soon as practicable, at their own expense. All logs or timber floating or driven down the said River St. Croix shall be collected by said corporation in said boom, and shall be assorted according to their several marks, and well rafted in good rigging, and delivered at or near the foot of said lower boom to the owner of such logs or timber, or to such person as such owner may designate: provided, that hereafter said corporation may, at their option, omit to maintain or keep up, or raft logs or timber at, their said upper boom; and in case and so long as said upper boom is not kept up, except for the purpose of rafting logs or timbers for mill-owners to be manufactured here, between said...