People's Ice Co. v. Steamer Excelsior

• Decision Date: 06 October 1880
• Citation: 6 N.W. 636,44 Mich. 229
• Parties: PEOPLE'S ICE CO. v. STEAMER EXCELSIOR
• Court: Michigan Supreme Court

6 N.W. 636

44 Mich. 229

PEOPLE'S ICE CO. v. STEAMER EXCELSIOR

Supreme Court of Michigan

October 6, 1880

Plaintiffs were engaged in a general ice business in Detroit, Mich., and the lessees of a large portion of the water front of Belle Isle, in the Detroit river, along which and outside of a line 15 feet from the shore they had constructed a boom. On January 11, 1878, the pond formed inside of such boom was frozen over with hard, clear ice six inches thick, and on that day the defendant boat was, by her master, run backward and forward on such river, and so unusually near the said boom that the swell caused by the steamer broke up the said ice so that plaintiff was unable to harvest it, and the weather continuing mild thereafter so that ice did not properly form, plaintiff was, by reason thereof, unable to get a stock or fill its ice-houses. There was room for the boat to pass further away from such boom, and where the swell would not have injured such ice. Held, that defendant boat was liable for the damage so caused; that the damages as found by the court below--$1,000--are inadequate, and the same is increased to $2,500. Proper measure of damages in such case discussed.

Appeal from Wayne.

Wisner & Speed, for defendant.

MARSTON C.J.

Some of the questions raised in this case are not only interesting but of such importance as to demand great care in their examination, and in the discussion and disposition thereof. The following statement of the case is taken from the briefs of counsel for the respective parties:

In January, 1878, the complainant was an ice company in Detroit doing a general ice business, and was lessee of a portion of Belle Isle, in the Detroit river, consisting chiefly of water front. The respondent steamer was a ferryboat, used and employed in ferrying between Windsor and Detroit. Occasionally she was used for towing upon the Detroit river and adjacent waters. On the leased property running along inside of the channel bank of the Detroit river, the complainant had constructed a boom 3,600 feet long, containing 1,099,600 square feet, outside of a line of 15 feet from the shore.

On the shore, adjacent to this pond, complainant had 15 ice-houses capable of holding about 20,000 tons of ice. On January 11, 1878, this pond was frozen over with hard, clear ice, six inches thick. On that day the Detroit river was entirely open, and the steamer was taken by her master from her dock below Belle Isle up beyond, then turned and run down part way, thence up, then down, up again, and then down to Detroit. Complainant claimed that the steamer was run on these trips unusually near the boom, and that the swell caused by the steamer broke up the ice in the boom so that complainant was unable to harvest it. The width of the channel of the Detroit river, opposite this boom, was upwards of 1,800 feet. This was the first crop of ice that had formed that winter, and the weather thereafter was so mild that no more ice fit to cut formed in the boom, consequently complainant failed to get a stock or fill its ice-houses. The case was heard in the court below, without a jury, and judgment was rendered in favor of complainant for $1,000 damages. Both parties appealed.

The complainant appealed because the amount awarded was considered inadequate. The defendant presents several objections in this court: That the amount of the decree is larger than the evidence warranted; that the mildness of the winter of 1877-8 was the proximate cause of any injury suffered by complainant, and that the respondent is not liable for such an injury; that the court should have adopted as the correct rule of damages "the true value of the ice, or rather the privilege of taking it,"--what it would have been shown to be had the matter been settled or the case tried on the very day the ice was broken; that conceding the respondent to be liable, which was not done, the value is to be determined as on the day the ice was broken, and upon the probabilities, based upon the ordinary course of events, relating to such matters. It being alleged that the steamer did not keep in the channel of the river and away from the boom--which if she had done no damage would have been done the ice--the respondent, in answer thereto, claims that the right to navigate any portion of Detroit river, between its banks, is not subject to the rights of parties having property along the shore that may be injured by the swell occasioned by passing steamers, and that no such burden can be attached to the right of navigation. The respondent further claims that if the only object the master had in going up the river was to break the ice, he in so doing was acting entirely beyond the scope of his employment, for which neither the vessels nor the owner would be liable. It was also claimed that the steamer, having been bonded and released under the statute, a decree against the vessel was unwarranted. This complainant's counsel conceded, so no further notice thereof need be taken.

There was very great difference in the opinion of witnesses as to the value of the ice. Complainant's witnesses, in view of the season and subsequent scarcity of ice, valued it at two dollars per ton; some, indeed, still higher. The quantity was fixed at about 13,000 tons. The defendant's witnesses, some of them, say that on January 11th, the time of the injury, the ice had no value, as it was not fit to cut; that six-inch ice could not profitably be cut, and that it was early in the season, when ice in its place might be expected to form. Others placed a value on the entire crop of from $300 to $700. That the ice was broken and destroyed for complainant's use by the swells caused by the steamer, we have no doubt; and owing to the width of the channel this could have been avoided without delay, danger, or additional expense to the steamer. If we accept the evidence of the master as true, that his business in going up the river the first time was to ascertain the condition of the ice in Lake St. Clair in order to determine whether he could, with safety, on the next day go after and tow through a vessel; that in going up the second time he desired to ascertain whether the American channel was opened, having omitted so to do on the first trip; and that the occasion of his third trip up was that he might cross over and enable a party on board, who was interested in the ice business, to see whether there was ice in a bay across the channel,--it would not avail the defendant. It would still appear that the injury was done, through gross carelessness, while the steamer was otherwise lawfully engaged.

Was, then, the respondent's right to navigate the Detroit river subject to complainant's right of property in this case? Ordinarily it may be said that the entire width of the highway may be used, yet the owner of the land over which it passes may, within the limits thereof, plant trees, set posts, and do such other acts as will add to his convenience or assist in beautifying his premises. He is encouraged in doing this by public sentiment, in the remission of taxes by the public authorities for the planting of trees, and in the protection which the law gives him by the punishment of those who interfere with or destroy what he has done. Public convenience may, in time, in particular locations, require the removal of some of these things, and whenever the necessity arises and the public authorities request their removal, then the private must give way to the public or paramount right. But while permitted to remain no one traveling the highway could wilfully injure or destroy them, and should any one do so he would justly be held responsible, notwithstanding his plea of a claim of right to travel over any part of the highway. If the law were otherwise, the streets in our cities and villages, and our public highways, would soon be stripped of their shade and ornament. Clark v. Dasso, 34 Mich, 86.

So, in cities, the right to use the public streets whereon to deposit material for building purposes is frequently granted and enjoyed. Has the traveler the right unnecessarily to wilfully or negligently drive over and break, mar, or destroy such materials upon the plea of a right to use the highway? The law in this country requires the owners of vehicles, when meeting, each to bear to the right, yet it has never been supposed that a neglect so to do on the part of one would justify the other in wilfully or carelessly injuring the person thus in the wrong. A teamster may temporarily encumber a part of the highway whlle loading or unloading, and while thus exercising his right another cannot insist upon occupying the same place, or carelessly drive into and injure his team or vehicle. Cary v. Daniels, 8 Met. 478.

The right of fishing in our public navigable waters is one largely and profitably enjoyed, and in order to carry on the business successfully it frequently becomes necessary to set nets extending into the river channels and...