McKenzie v. Mississippi & Rum River Boom Company
| Decision Date | 11 July 1882 |
| Citation | 13 N.W. 123,29 Minn. 288 |
| Parties | John McKenzie v. Mississippi & Rum River Boom Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial, after verdict of $ 300 for plaintiff. The case is stated in the opinion.
The order denying a new trial affirmed.
McNair & Gilfillan, for appellant.
To constitute a tort, both a wrong and damage must co-operate. Damnum absque injuria will not give a cause of action. Cooley on Torts, 60, 62; Moak's Underhill on Torts, 5. The rule of law having special application to this case is as follows 1 Hilliard on Torts, 112; 1 Wait's Act. & Def. 146; 2 Wait's Act. & Def. 115; Cooley on Torts 81.
It is well settled that, in the absence of legislation on the part of the United States, the state within whose boundaries navigable rivers lie may legislate with respect thereto, and may authorize the construction of wharves, piers, booms dams, and other structures in aid of navigation; also, that the state may delegate to a corporation the power to construct and maintain such structures; that, when constructed and maintained under such delegated authority, the necessity and utility of such structures cannot be questioned by private parties, and that the acts of defendant complained of as inflicting damage upon plaintiff's land were done in the proper exercise of their delegated powers, and in aid of the navigation of Rum river Cotton v. Mississippi & Rum River Boom Co., 22 Minn. 372; Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, 95 U.S. 459; Wisconsin River Improvement Co. v. Manson, 43 Wis. 255; Heerman v. Beef Slough Mf'g Co., 1 F. 145; Transportation Co. v. Chicago, 99 U.S. 635.
The public interest in respect to the navigation and control of logs and timber requiring concerted and centralized action, defendant, having been charged with and having undertaken the performance of this public duty, stands upon the same footing with municipal corporations and other instrumentalities upon which have been devolved the powers of the state for the general benefit. It represents, in large measure, the sovereignty of the state in the exercise of its public police powers. When therefore it performs its duties with due care and diligence, and does not unnecessarily invade and encroach upon private property and rights, it cannot be held responsible for all incidental, temporary and remote damages. To hold it so responsible is to defeat the very object of its existence, and render the performance of its public duties impracticable. Goszler v. Corporation of Georgetown, 6 Wheat. 593; Callender v. Marsh, 1 Pick. 418; Green v. Borough of Reading, 9 Watts, 282; O'Connor v. Pittsburg, 18 Pa. St. 187; Smith v. Corporation of Washington, 20 How. 135; Lansing v. Smith, 8 Cow. 146; Radcliff's Ex'rs v. Mayor, etc., 4 N.Y. 195; Gould v. Hudson River R. Co., 6 N.Y. 522; Governor v. Meredith, 4 Term Rep. 794; Boulton v. Crowther, 2 Barn. & Cress. 703; Hollister v. Union Co., 9 Conn. 435; Alexander v. City of Milwaukee, 16 Wis. 247; Sutton v. Clarke, 6 Taunt. 29; Whitehouse v. Birmingham Canal Co., 27 L. J. Exch. 25; Steele v. Western Lock Navigation Co., 2 John. 283; Rex v. Com'rs of Sewers, 8 Barn. & Cress. 355; Sprague v. City of Worcester, 13 Gray, 193; West Branch, etc., Canal Co. v. Mulliner, 68 Pa. St. 357; Monongahela Navigation Co. v. Coons, 6 Watts & S. 101; Susquehanna Canal Co. v. Wright, 9 Watts & S. 9. This is also true in grading public streets. Wilson v. Mayor, etc., 1 Denio, 595; Hoyt v. City of Hudson, 27 Wis. 656; Dillon on Mun. Corp. § 800.
Every public improvement must, almost of necessity, more or less affect individual convenience and property; and, when the injury sustained is remote and consequential, it is damnum absque injuria, and is to be borne as part of the price to be paid for the advantages of the social condition. Thorpe v. Rutland & B. R. Co., 27 Vt. 140; Lansing v. Smith, 8 Cow. 146; Cooley on Const. Lim. 589.
In the case of Weaver v. Mississippi & Rum River Boom Co., 28 Minn. 534, the defendant had actually taken and occupied the land of plaintiff with logs and piers. This occupation was shown to be not casual or accidental, but one which was permanent and must inevitably continue, and of such a character as to effectually destroy the usefulness of the land for plaintiff. An examination of the authorities cited and relied on by the court in that case will show that in every one, where there was any taking or occupation under similar facts, the taking or occupation was direct, voluntary and permanent. In the present case the occupation by water which is complained of was not the direct act of the defendant, or one that it could have foreseen or prevented. It was merely temporal and consequential.
Is the taking complained of such in its character as would sustain condemnation proceedings? Unless it is, certainly defendant cannot be held liable in this action. But to deprive plaintiff of his property under condemnation proceedings, the necessity for such taking being based upon the apprehension that once in seven or eight years the property is likely to be invaded by a flood and a few logs, would be an enormity that no court would countenance.
The maxim, causa proxima et non remota spectatur, is directly in point in this case. The rise of water in the spring was the proximate cause of injury, and the acts of the defendant the remote cause. Cooley on Torts, 68; Broom's Legal Maxims, 216; 1 Addison on Torts, 6; Carstairs v. Taylor, L. R. 6 Exch. 217; Boulton v. Midland G. W. Ry. Co., Irish L. R. 7 C. L. 169; Dunn v. Birmingham Canal Co., L. R. 7 Q. B. 244; Snook v. Town Council of Brantford, 14 U. C. Q. B. 255; Blyth v. Birmingham Water Works Co., 25 L. J. Exch. 212; Morrison v. Davis, 20 Pa. St. 171; Denny v. N. Y. C. R. Co., 13 Gray, 481; Railroad Co. v. Reeves, 10 Wall. 176; Bellinger v. N. Y. C. R. Co., 23 N.Y. 42; Selden v. Del. & Hud. Canal Co., 29 N.Y. 634; Smith v. Agawam Canal Co., 2 Allen, 355; Inhabitants of China v. Southwick, 12 Me. 238.
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...
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