McPheters v. Moose River Log-Driving Co.

• Decision Date: 30 June 1886
• Citation: 5 A. 270,78 Me. 329
• Parties: MCPHETERS v. MOOSE RIVER LOG-DRIVING CO.
• Court: Maine Supreme Court

5 A. 270

78 Me. 329

MCPHETERS

v. MOOSE RIVER LOG-DRIVING CO.¹

Supreme Judicial Court of Maine.

June 30, 1886.

Action on the case for negligence. On report from supreme judicial court, Piscataquis county.

The opinion states the facts.

Henry Hudson, for plaintiff.

Lebroke & Parsons, for defendant.

EMERY, J. From the evidence we gather the following facts: Moose river, rising in the mountains near the Canada line, and gathering the waters of numerous tributaries, flows easterly through Long pond, Little Brassua lake, Great Brassua lake, and into Moosehead lake, nearly opposite Mt. Kineo. The distance from Long pond down to Little Brassua is some four miles, and for that space the river flows over rapids. From Little Brassua down to Great Brassua is some four miles of nearly dead water. Across Great Brassua lake to its outlet is about three and one-half miles, and from there to Moosehead lake is about four miles. About two and one-half miles above Great Brassua a stream called the "Tom Fletcher Brook" flows into Moose river from the north. Both Tom Fletcher stream and Moose river are floatable streams and public highways for the passage of logs. The defendant corporation, by chapter 179, Sp. Laws 1879, was incorporated to "drive all logs and other timber coming into said Moose river between Mooseriver bridge (above Long pond) and Moosehead lake for the purpose of being driven to market," etc. The corporation was authorized to "erect booms and dams where the same may be lawfully done, and to use steam and other power for the purpose of towing logs and booms." The charter does not state how far the corporation must drive the logs, but it gives authority to drive them to market, which would be down the Kennebec river. In fact, however, the corporation, at the first two years of its existence, had only driven logs into Moosehead lake, and there turned them over to another company to be towed. In September, 1880, the plaintiff took a contract to cut and haul logs into the Tom Fletcher, and to drive them down the Tom Fletcher into Moose river. In the following October he began operations in the woods under this contract. At this time Moose river was substantially clear of logs from Long pond to Great Brassua lake. Between Great Brassua and Moosehead there were some 3,000,000 feet of left-over logs. This condition of the river was noted by the plaintiff. There had also been left over, above Longpond rapids, some 12,000,000 feet or more, and in the fall of 1880, after the plaintiff had gone into the woods, the defendant drove these logs down. They did not drive them into Moosehead lake, as they could have done, but swung a boom across Moose river at its outlet into Great Brassua; drove the logs down against that boom, entirely filling the river with them up some distance above the outlet of the Tom Fletcher, and there left them for the winter. In the spring of 1881 the plaintiff, with his drive of logs, arrived at the outlet of the Tom Fletcher before the spring drive on the Moose river, under the care of the defendants, had arrived at the same point. Had it not been for the storage of the logs in the river above Great Brassua by the defendants the previous fall, the plaintiff could have turned his logs into Moose river, and so fully performed his contract. As it was, the plaintiff found the river full of old logs, with no space to receive his logs. In a few days the spring drive of the Moose river, some 50,000,000 feet, came down against the old logs, and before the drive passed the Tom Fletcher the driving season was over, and the plaintiff's logs were stranded in the Tom Fletcher.

The defendants had as much right as the plaintiff to use Moose river for driving purposes. If they fairly occupied the river first with their logs, they could claim precedence, and the plaintiff would need wait, provided they used reasonable diligence and efforts to propel their drive. They were under no obligation to hold up, and let the plaintiff put his logs in ahead, or even in the midst of their drive. If the plaintiff reached the river later than the defendants, he would be obliged to wait, and his loss would be damnum absque injuria. If the defendants, in such case, used reasonable diligence and efforts, they would not be responsible, even though they made temporary delays for purposes of booming, etc. But the defendants, the fall before, had deposited logs in this particular part of...