Osborne v. C. N. Nelson Lumber Co.

• Decision Date: 11 March 1885
• Citation: 33 Minn. 285,22 N.W. 540
• Parties: OSBORNE v C. N. NELSON LUMBER CO.
• Court: Minnesota Supreme Court

33 Minn. 285

22 N.W. 540

OSBORNEvC. N. NELSON LUMBER CO.

Supreme Court of Minnesota.

Filed March 11, 1885.

Appeal from an order of the district court of Carleton county.

White & Bower, for respondent, Robert Osborne.

Ensign & Cash, for appellant, C. N. Nelson Lumber Co.

DICKINSON, J.

Section 78, c. 32, Gen. St. 1878, provides that “any person who shall desire to float to market, or place of manufacture, any logs or timber in any of the streams of this state, and who shall be hindered and obstructed in so doing by the logs or timber of another, or any person whose logs or timber, in any of the waters of this state, are so intermixed with the logs or timber of another that the same cannot be conveniently separated for the purpose of being floated to the market or place of manufacture, may drive all logs or timber, with which his own is or may be obstructed or intermixed, towards such market or place of manufacture, to some point where the same can be conveniently separated from his own, and shall be entitled to a reasonable compensation therefor from the owner of such logs or timber.” By this action a recover is sought, by force of the statute, for driving logs of the defendant which, at the time when the plaintiff commenced driving his logs in the Cloquit river, were so intermingled with those of the plaintiff that they could not be conveniently separated. In driving the intermingled logs, the plaintiff left a large amount of the defendant's logs, which became separated from his own, at various points along the stream; and this fact was relied upon as a defense, or at least as affecting the measure of the plaintiff's recovery. That portion of the answer which alleged this fact was stricken out by the court, and this constitutes one of the errors assigned. We do not construe this portion of the answer as being in the nature of a counter-claim; and the appellant does not claim that it was such, but only that the matter alleged was proper as a defense.

It may be assumed that the law is as the appellant claims it to be: that one who undertakes, by authority of the statute, to drive the logs of another which are intermingled with his own, is bound to carry along all of such intermingled logs to a place where they may all be separated, and that he may not leave scattered along the shores, or aground upon rocks, such portion of the other's logs as may become separated from his own during the progress of the work, and then claim compensation for such portion as may be taken through to the place of separation. But, notwithstanding the striking out of this part of the answer, the court found the fact to be substantially as alleged by the defendant. The court further found, upon evidence which is deemed to justify the conclusion, that it was in accordance with the defendant's request that the plaintiff dropped out of his drive such logs of the defendant as became separated from his own. It is therefore apparent that the defendant has not been prejudiced by the striking out of that defense from the answer. The defendant might excuse the plaintiff from the full performance of his legal duty in respect to the defendant's logs; and the request of the defendant had that effect. The court...