Olive v. State

• Decision Date: 02 March 1889
• Parties: OLIVE ET AL. v. STATE.
• Court: Alabama Supreme Court

5 So. 653

86 Ala. 88

OLIVE ET AL. v. STATE.

Supreme Court of Alabama

March 2, 1889

Appeal from circuit court, Greene County; S. H. SPROTT, Judge.

The indictment charged that defendants, Thomas Olive and others "did unlawfully injure a mill-dam of a mill known as the 'Sipsey Mills,' situated on the Sipsey river, said mills being the property of Moses Horton and Bob Horton, by floating logs over said mill-dam." On the trial, the evidence for the state showed that the Hortons (Moses and Robert L.) owned the mill on the Sipsey river, with the land on each side, the mill-house being on the Pickens side, and the mill-dam extending across the river to Greene county "that said mill and dam had been there as long as 38 years; that in March, 1886, before the finding of the indictment in this case, defendants floated saw-logs down the river from above the dams, and greatly injured it;" that the Hortons had notified defendants that the logs could not then be floated over the dam without injury to it, and pointed out to them the marks which indicated the stage of the river at which logs could be safely floated over; that Olive declared "they would go over it any way;" and another of defendants, "that they were going down then with their logs, and were going over even if they had to tear the dam out."

Defendants read in evidence three acts of the general assembly of Alabama, as follows: (1) An act approved December 23, 1837 entitled "An act to declare Sipsey river a public highway;" (2) an act approved February 2, 1839, entitled "An act to incorporate the Sipsey River Navigation Company;" (3) an act approved March 2, 1876, entitled "An act to incorporate the Alabama Sipsey River Navigation Company, and to prescribe its duties and regulate its powers." The first of these acts declares, by its first section, "that the Sipsey river, from its mouth to George Humprey's, in the county of Marion, is hereby declared a public highway;" the second section provides "that any person obstructing the navigation of said river, by building mili-dams, fish-traps, or in any way," shall forfeit and pay $1,000, "and all such obstructions shall be removed by order of the county or circuit court, as a public nuisance;" and the third section, "that this act shall not be construed as to interfere with any mill or bridge already erected on said river." The second act requires no notice, as nothing seems to have been done under it. The third act contains 13 sections, the first 11 of which relate to the organization of the corporation. The eighth section provides "that the president and directors of said company shall have power and authority to open and improve the navigation of the Sipsey river, from its mouth of the line of Marion county, by removing the obstructions therein, and opening a canal or canals, or in any other such way, as to the company may deem expedient," with a proviso as to obtaining the consent of the land-owners; the ninth and tenth sections provide for proceedings under a writ of ad quod damnum, where the consent of land-owners cannot be obtained; the eleventh section gives the company 15 years "within which to complete their work upon said river in opening the same up to navigation," and the exclusive right to navigate the stream for 30 years after the completion of their work; the twelfth section provides "that any obstruction hereafter created or placed upon said stream, by the erection of bridges, mills, dams, or otherwise, shall, whenever the company has, in the progress of its work, reached the point of any such obstructions, be liable to be removed by said company;" and the thirteenth section repeals all inconsistent laws. Sess. Acts 1875-76, pp. 318-322.

The defendant also introduced evidence that the Sipsey river was sufficient for the floatage of logs and flat-boats during the winter season, and saw-logs and rafts could be floated over the dam in question during high water; that their said logs were rafted and floated down the river from Fayette county by the Alabama Sipsey River Navigation Company, through said Olive, as its president, the other defendants acting under his employment; that said company was organized as a corporation, according to law, but had not cleaned out the river; that the defendants waited above the dam with their logs, for two weeks or more, for the water to rise, so that they could go over the dam safely; that a thaw of ice and snow came, and the river did rise; that they then cut their logs loose, so as to cause them to go over safely, and, with the advice of persons acquainted with the river, floated them over; that the dam gave way the night after the logs were floated over; and that the part of the dam which had been injured had been moved up the river from 5 to 15 feet, a year before the injury. On this evidence the court charged the jury "that the Sipsey river was not a public highway under said acts of the legislature, as it had not been cleaned out and adapted to the purposes of navigation, as contemplated in said act;" also, "that the fact that the Hortons' dam was shown to have existed there for many years established the fact that it was rightfully in the river, and rendered the defendants amenable to the criminal law if they willfully injured the dam in passing their raft of logs over it." The court also gave the following charges, asked in writing at the instance of the state "(2) If the jury believe from the evidence that the defendants run their logs over the dam recklessly carelessly, and without caring whether they injured the dam, then they are guilty as charged in the indictment." The defendants excepted to each of these charges as given, and also reserved exceptions to the refusal by the court to give several charges requested by them in writing, among which were the following: "(1) If the jury believe from the evidence that the logs which injured...