Osborne v. Knife Falls Boom Co.

• Decision Date: 21 November 1884
• Citation: 32 Minn. 412,21 N.W. 704
• Parties: OSBORNE AND OTHERS v KNIFE FALLS BOOM CO. AND ANOTHER.
• Court: Minnesota Supreme Court

32 Minn. 412

21 N.W. 704

OSBORNE AND OTHERSvKNIFE FALLS BOOM CO. AND ANOTHER.

Supreme Court of Minnesota.

Filed November 21, 1884.

Appeal from the district court, Carleton county.

Gordon E. Cole, J. M. Gillman, and W. W. Billson, for appellants, Robert Osborne and others.

Warner & Stevens and J. N. Castle, for respondents, Knife Falls Boom Corporation and another.

BERRY, J.

Facts as follows are found by the court which tried this action below: The St. Louis river rises in this state and flows over 200 miles therein, forms the boundary between it and Wisconsin for about 20 miles, and then empties into Lake Superior. Upon it and its tributaries, and in the region drained thereby, lie extensive pine forests, large tracts of which, situate above the obstructions maintained by defendants in the river, as hereinafter stated, are owned by plaintiffs, This river furnishes the only practicable route by which the logs and lumber of these forests can be transported to market. Ever since its acquisition by the United States this river has been a public highway, navigable by steam-boat for 20 miles from its mouth, and for 200 miles above for row-boats, canoes, and batteaux, with the exception of two portages, one from Fond du Lac to Thomson, a distance by river of about nine miles, and the other around Knife Falls. In its natural state the river was of such capacity and character as to render it practicable to float loose logs and timber from near its source to its mouth during periods of ordinary high water, and for this purpose it was a valuable highway. From Thomson to Fond du Lac the river “flows down a series of cascades and rocky rapids, over which, in its natural state, logs and timber would float in a rising stage of high water, and, though the rapids have been improved for the running of logs by the building of dams and the blasting out of rocks, still to run them successfully logs must be allowed to reach them on a high or rising stage of water, otherwise they will be hung up on the rocks.” There are 12 sawmills at and near Duluth, of large capacity, and the plaintiffs, owning pine lands as aforesaid, desire to float logs cut thereon down the river to said mills for manufacture or sale, and any obstruction to such floating renders the lands and timber of plaintiffs less valuable, and inflicts upon them “a special injury not common to the public generally.”

By the terms of chapter 106, Sp. Laws 1872, the defendant the Knife Falls Boom Company (under license from which the other defendant, the St. Louis River Boom & Improvement Company, has proceeded) is authorized and required to construct, maintain, and keep in reasonable repair such booms in and upon the St. Louis river, within townships 49 and 50 of range 17, in Carleton county, (being the townships within which are the obstructions complained of in this action,) at such points as it may deem advisable and sufficient to secure, receive, scale, and deliver all logs that may, from time to time, come or be driven within said limits, and to receive and take the entire control and possession of all logs and timber which may be run, come, or be driven within the same, and boom, scale, and deliver them as hereafter provided. Section 3 of the chapter provides that all logs and lumber coming within the limits aforesaid, before delivery thereof to the owners, shall be scaled by the surveyor general; the expense of the scaling, not exceeding two cents per thousand feet, to be paid by said Knife Falls Company. Scale bills of each separate mark are to be made out by the surveyor general, as logs are required to be delivered, and, when so assorted and scaled, secured in strings, brails, or otherwise, as the surveyor general may deem proper, they are to be delivered to the proper owner, upon reasonable request, upon paying to said company the amount of boomage and other charges authorized by the act. By section 4, as amended by chapter 73, Sp. Laws 1878, the company is entitled to compensation for boomage (which includes scaling, assorting, and delivery of logs) at a rate not exceeding 45 cents per thousand feet for the first five years, and until the legislature shall alter or change the same, to be computed from the scale bill required to be made by the surveyor general; and, by the same section, all logs required by the owners thereof to be turned over the Knife Falls below the boom shall be so turned over by said company upon payment by the owners thereof of the above-named compensation per thousand feet, and no additional charge shall be made therefor. By section 5 the compensation to which the company is entitled becomes due whenever the logs are scaled and ready for delivery, and a lien is given to the company upon enough of the same to pay their lawful charges.

Beginning in 1880 the defendants have constructed piers and booms across the entire width of the St. Louis river, within the limits mentioned, by means of which they stop and hold all logs and timber floating down said river to the places where the piers and booms are situated. The defendants have also constructed, in connection with the piers and booms, assorting booms and gaps, to facilitate the assorting of logs so stopped, and the delivery of logs destined to mills within said limits to the owners thereof, and the turning of logs destined for points on the river below said limits loose in the river below said works; and such assorting works require all logs passing down the river to pass through an opening about 27 feet wide. The general plan of the assorting works is such as is in quite common use throughout the lumbering regions of the north-west for like purposes, and no better is suggested. The capacity of the works for the rapid assorting and delivery of logs can be largely increased without altering the general plan, and without unreasonable expense, by extending the assorting booms and widening the upper portion of the passage-way to 40 feet in width, or by making two passage-ways, or by both means; but as much or more will always depend upon the proper manning and operating the works as upon their construction and capacity.

It is not practicable to construct and operate any booms or assorting works on the St. Louis river within the limits mentioned, through which any considerable quantity of logs can be passed-and assorted as they pass-without material hinderance and delay to logs destined to points below such limits; and, if logs have to be scaled during their passage through the works, the hinderance and delay must be much greater. No boom or other obstructions in the St. Louis, within the limits mentioned, can be of any aid, service, or assistance to the plaintiffs, or others, who desire to run their logs to any point below such limits; but such boom or other obstruction will, under any and all ordinary circumstances, operate as a detriment so far as they delay logs in reaching their destination, and such delay is likely to be serious and considerable, because logs will usually reach such works in high water, which seldom lasts in the St. Louis for more than one to three weeks, and, if logs are detained in the booms until a falling stage of water occurs, they will not pass over the rapids until another rise, and a rise does not ordinarily occur more than twice a year. It is not practicable to raft logs on the St. Louis river above the limits mentioned, or to float rafts through the limits, or along the river below the same above Fond du Lac, and there is no opening left in defendants' works for the passage of either rafts or boats, and the booming, scaling, assorting, and delivering of logs mentioned in the fourth section of the act aforesaid are of no benefit or advantage to the owners of logs destined to points at or below Fond du Lac. Some of the plaintiffs, during 1882 and 1883, cut logs on the St. Louis and its tributaries above defendants' booms, and endeavored to float them to Duluth, but succeeded in getting only a small part, through the detention at defendants' booms and the unusually low water in the St. Louis during these years having “each supplemented the other in delaying said logs.”

Within the limits mentioned there are certain rapids out of which defendants have blasted and removed rock, thereby making a better channel for the passage of logs, but it was entirely feasible and practicable to float logs over them in their natural state. The defendants claim the right to charge, and do charge and collect, and threaten to charge and collect, by detention and sale of logs, 45 cents per thousand feet for all logs passing their works, whether assorted and delivered to their owner or allowed to pass down the river in a common mass without being assorted, and delivered to their several owners, and the plaintiffs and others are deterred thereby, and by the hinderance and delay occasioned by defendants' booms and piers, from cutting and floating to Duluth large quantities of logs, as they otherwise would do.

The special relief demanded by plaintiffs is that defendants be restrained from stopping, hindering, or delaying the passage of plaintiffs' logs down the river, and that they be required to remove the piers and other structures erected by them in the river, so as to give a full and unobstructed passage to the plaintiffs' logs, or that they be required so to alter their works as to enable them to separate from plaintiffs' logs such as are to stop at Knife Falls, and allow plaintiffs' logs to pass on whenever and while the water in the river is sufficient to take them over the rapids and before it becomes too low for that purpose, and so as not to delay the plaintiffs in getting their logs to Duluth over said rapids, or to increase the expense thereof. As a conclusion of law the trial court found that plaintiffs were not entitled to the relief demanded, but that defendants were entitled to judgment against plaintiffs for costs. While, in our view of the law of ...