M'Kenzie v. Mississippi & Rum River Boom Co.
| Decision Date | 11 July 1882 |
| Citation | 29 Minn. 288 |
| Parties | JOHN McKENZIE <I>vs.</I> MISSISSIPPI & RUM RIVER BOOM COMPANY. |
| Court | Minnesota Supreme Court |
McNair & Gilfillan, for appellant.
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Levi & Cray and M. Q. Butterfield, for respondent.
During the years 1880 and 1881, plaintiff was in the possession and occupation of a tract of land situated on the left bank of Rum river, in Anoka county, and embracing the shore thereof for about three-quarters of a mile. Rum river is a navigable stream, under the laws of the United States, and of sufficient size for floating logs and lumber, and much used for that purpose. Prior to 1880 defendant had erected a boom across the river, with reference to the holding and running of logs, under a charter granted by the territory of Minnesota, May 21, 1857, and acts amendatory. The plaintiff brings this action for damages, alleging that, by reason of the wrongful and negligent manner in which the boom was constructed and maintained, the water of the river was thrown upon the tract of land mentioned, large quantities of logs, sand, etc., carried and left thereon, and the growing crops destroyed. Aside from denials of the damage alleged, and that it was caused by the boom, the defences set up in the answer are two: First, defendant denies that the boom was wrongfully or negligently constructed or maintained, and alleges that it was constructed and maintained in accordance with its charter, and that the boom as constructed and maintained was necessary to the performance of the duties by the charter imposed. Second, the answer sets up a lease or license from plaintiff, authorizing defendant to do the things complained of.
As respects this second defence and the denials of damage, and that it was caused by the boom, it is unnecessary to speak at length. The jury have found the facts adversely to the defendant, and upon evidence of such a character that the finding cannot be disturbed. Some question is made upon the propriety of a refusal by the court to give an instruction requested by the defendant in reference to the second defence, but we are of opinion that as respects the subject of the request the jury were sufficiently instructed in the general charge of the court, or at least quite as favorably to the defendant as the applicable rules of law permit.
The main controversy in the case relates to the first defence mentioned, and, in substance, the question raised comes to this: If it be admitted — as it appears to have been upon the trial — (1) that defendant's boom was constructed and maintained in accordance with its charter; (2) that it was necessary that it should be constructed and maintained as it was, in order to the performance of the duties by charter imposed upon defendant; and (3) that it was not, with reference to these two propositions, negligently constructed or maintained, — is the defendant liable, if, in times of high water of a stage unusual, yet such as occurs and may be expected to occur at intervals of some years, the water of the river is so raised, in consequence of the construction and maintenance of the booms, as to overflow the land of a riparian owner to the damage thereof and of the crops growing thereon?
In our opinion this question is substantially answered in the affirmative in the case of Weaver v. Miss. & Rum River Boom Co., 28 Minn. 534. See, also, Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. In the Weaver Case it appeared that the effect of constructing and maintaining the boom therein complained of "was to cause the logs to collect in it, and...
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