McKeesport Sawmill Co. v. Pennsylvania Co.

• Decision Date: 01 April 1903
• Docket Number: 18.
• Citation: 122 F. 184
• Parties: McKEESPORT SAWMILL CO. v. PENNSYLVANIA CO.
• Court: U.S. District Court — Western District of Pennsylvania

122 F. 184

McKEESPORT SAWMILL CO. v. PENNSYLVANIA CO.

No. 18.

United States Circuit Court, W.D. Pennsylvania.

April 1, 1903

W. S Dalzell, for the rule.

Alex. A. Patterson, opposed.

ARCHBALD District Judge.

^[1] This is an action of trover, but it is difficult to see how the defendants can be charged with having converted the coal barge of the plaintiffs simply because they found it necessary to destroy it in order to dislodge it from the position where it lay, bearing upon and endangering the false work of their bridge. It is true that the exercise of dominion over personal property in disparagement of the owner's right is, as a rule, a conversion, and its destruction would, therefore, seem to be eminently such because it is the end of any further beneficial use or interest therein. And yet is was held that the mere cutting down of trees without taking them away, which is a species of destruction, was not a conversion (Mires v. Solebay, 2 Modern, 245); nor the turning loose of a team of horses whereby they were lost (Fouldes v. Willoughby, 8 Mees. &amp Wellsby, 540). So, where the span of a bridge was carried away by flood, and lodged on the end of an island, it was said by Gibson, C. J., that the owner might, after notice, disincumber his land by casting back the structure into the river, without being liable, although by breaking it up and making use of the material he was. Forster v. Juniata Bridge Company, 16 Pa. 393, 55 Am.Dec. 506. All of which seems to show that it is not every destruction or deprivation of property that amounts to a conversion, and that an actual appropriation of it by the offending party for his own benefit is more or less involved in order to make it so. But this question was not raised at the trial, and I will not undertake to definitely pass upon it. What we are particularly concerned with is whether the jury were properly instructed as to the rights and duties of the defendants in the premises, and upon an examination of the charge I regret to say that I do not think they were

The coal barge, for loss of which the action is brought, having slipped its moorings in some way not disclosed, and being without any one to guide it, was carried down against the fender and false work of the defendant's bridge, where it caught and held a great body of slush ice, becoming a peril which it was not only the right, but the duty, of the defendant railroad to remove. In doing so the company were not required to particularly concern themselves with the interests of the unknown owner, nor to see whether, in dislodging or breaking it up (which, as a last resort, they found necessary), either it or its contents could not, by some possibility, be saved. On the contrary, had they seen the barge coming down the stream on the flood, and been able to anticipate its course, they would have been entitled to ward it off from their structure, and let it go where it would, having the right, as every one has, to protect themselves against any such menace of their property. What they did after the barge lodged is to be judged of in the same way. There is no suggestion that it was wantonly destroyed, and the evidence shows that it was cut to pieces only after other means had been tried and failed. The only testimony that anything else could have been done with it is that of Capt. Hulings, who says that by breaking up the ice in shore with a steamboat, and then attaching a line, the barge could have been pulled over towards the Allegheny side, and so straightened out, and loosened from its position. The jury seem to have been impressed with the idea that this course was practicable, and ought to have been pursued, and had the question been submitted to them with proper instructions, we might have been compelled to abide by the result. But they were told that the defendant company were called upon to do as little injury as possible to the barge, and that, if they did not, they were liable. This demanded of them a greater degree of care than the law imposes. It involved in fact an effort to save the barge, which even the owners themselves did not see fit to exercise; for, although it lay lodged above the bridge for several days, and was discovered by Retzbach, who had charge of the plaintiff's boats, to be in that position the day after it broke loose, yet nothing whatever was done to rescue it, or get it out of the way. Having allowed the defendants to labor with it as best they could, they now seek to hold them liable for the full value of the boat and its contents. But the railroad company, in trying to get...