Pickens v. 1909

• Citation: 66 W.Va. 10
• Parties: Pickens v. Coal River Boom Comfany.
• Decision Date: 04 May 1909
• Court: Supreme Court of West Virginia

66 W.Va. 10

Pickens

v.Coal River Boom Comfany.

October 26, 1909.

Supreme Court of Appeals of West Virginia.

Submitted March 4, 1908.

Decided May 4, 1909.

May 13, 1909.

(Rehearing filed May 13, 1909.)

(Refused October 26, 1909.)

Corporations Nuisance Liability to Private Individual.

A elate charter of a corporation to do a work, which, without the charter would be a nuisance, will absolve it from, liability by indictment or otherwise as a public nuisance, but will not exempt it from action by an individual suffering damage from it. (p. 15.)

Evidence Judicial Notice Res Judicata.

Judicial notice will not be taken of a judgment in another suit as res judicita, whether in the same or another court, when not pleaded or given in evidence. (p. 12.)

Judgment Limitations of Actions Res Judicata Computation of Period of Limitations.

When the operation of a boom causes deposit of sand in a stream thereby injuring the grinding capacity of a mill, the mill owner may recover in actions from time to time as damage and loss occur, and is not compelled to sue for present and prospective damage in one suit, and the statute of limitations begins to run, not from the construction of the boom, but when the damage occurs in time. (p. 16.)

Appeal from Circuit Court, Kanawha County.

Action by Soman Pickens against the Coal Eiver Boom & Timber Company and others. Judgment for plaintiff, and the Coal River Boom & Driving Company appeals.

Affirmed.

Payne & Payne, Price, Smith, Spilman & Clay and Brown, Jackson & Knight, for plaintiff in error.

Mollohan, McClintic & Mathews, Chilton, McCorkle & Chilton, and A. B. Littlepage, for defendant in error.

Brannon, Judge:

Boman Pickens brought an action against the Coal River Boom & Timber Company and the Coal River Boom & Driving Company, both corporations, to recover damage for injury to his mill on Coal river, claiming that the works of the Boom Company on the stream below his mill stopped the outflow of sand and other sediment and caused them to rest in large quantities in the stream, and lessened the fall of the water over his dam, and thus lessened the grinding capacity of his mill. He recovered verdict and judgment for seven thousand dollars, and the Driving Company appeals.

This is a second action for damage from the same cause. The character of the case is just the same as that of the former action, which twice came to this Court. Reports of decisions in that action will be found in Pickens v. Boom & Timber Co., 51 W. Va. 445, and 58 Id. 11, rendering it needless to repeat the facts, as they are the same involved in the present case.

Does this boom, if damaging the mill by operation upon the water power, give Pickens action? The boom right rests upon a state charter. Does that charter give immunity from action by Pickens? We think that former decisions of this Court upon the same and similar facts answer this question in the affirmative The two decisions just cited do so. In Rogers v. Coal River Boom Co., 39 W. Va. 272, it was held that where damage comes from erection of piers for a boom in a river by construction of cribs of logs and filling them with stone, and using them to catch and hold logs, resulting in causing the current to flow against and injure the bank of a riparian owner, an action lies for him. It was again so held in Rogers v. Coal River Co., 41 W. Va. 593. Upon such facts we have decided that liability rests upon the boom company, and we must say so as matter of stare decisis. Indeed, it is admitted that the boom company is the same as that involved in the former action of Pickens, and also in the two other cases cited. We do not say that the former suit of Pickens is res judicata in this case, because it is not pleaded or given in evidence. We have a statute which allows the court to read and use, on hearing a second appeal or writ of error in the same case, the record of a former appeal or writ of error. But that statute does not apply in this case, since this is a writ of error in a second action, and we cannot use the record of the former action as res judicata. True, the Driving Company is lessee of the Boom Company and privy in estate with the latter company; but whilst judgments bind the parties and their privies, privies to be so bound must get their rights from parties after the judgment, and those having rights before the judgment are not bound. Maxwell v. Leeson, 50 W. Va. 361. The Driving Company acquired its right from the Boom Company before the judgment, and for that reason we cannot hold it res judicata against the former, as we could, if it had acquired its rights after the judgment, though not a party. But another reason why we cannot say that the former judgment is res judicata against the Driving Company is, that it is not pleaded. Judicial notice will not be taken in one suit of the proceedings in a separate suit, whether in the same or another court. The record must be either pleaded or given in evidence. United States v. Bliss, 172 II. S. 326. Many authorities say this. We do not here discuss the question whether, to have effect, the record of the former judgment must be pleaded or may be given in evidence. As I have said we do not use the former judgment as res judicata; but we say that upon the facts of this case and the principles announced in our former decisions of Pickens v. Boom* Co. and Rogers v. Boom Co., the liability upon the defendants is fixed anol settled on principles, not of res judicata, but stare decisis. But if it were an open question, we think that the liability exists. Criticism has been made upon the calling of this boom an unlawful nuisance in 51 W. Va. 445. This criticism seems to import that counsel think that if the boom cannot be denominated a nuisance, its erection and operation cannot give Pickens right of action. It is said that the grant of the boom charter under legislative authority purges it of the character of nuisance. It has seemed to me that this criticism is not exact and the matter immaterial. There are two classes of nuisances, public and private. A nuisance is public when affecting wrongfully the public generally, and private when affecting only certain individuals. There is no difference between these two kinds of nuisance, except as they affect the public or only certain individuals. The nature of the thing doing injury is the same. 29 Cyc. 1152; 21 Am. & Eng. Ency. L, 682. But for the charter the boom would be a public nuisance; but that makes it a lawful structure as to the state and the public. The state or an individual cannot abate it as a public nuisance, it cannot be indicted as a nuisance. Crenshaw v. Slate River Co., 6 Rand. 245; Watts v. Railroad, 39 W. Va. 198; State v. Elk Island Boom Co., 41 Id. 796. An individual affected by a private nuisance may peaceably abate it. 1 Am. & Eng. Ency. L. 79. But he cannot do so if the work is under ehaxter rights. To this extent only does the charter qualify the work as a private nuisance. The thing is still a private nuisance as to the individual. The charter has not made it further a lawful thing than exempting it from abatement. It is a private nuisance still, if of a nature to be such, just as if no charter had been granted. If it hurts the individual, it is actionable because a nuisance. It will be seen in the books that even railroads are often so called, when doing damage. If without charter it would be an actionable nuisance, the charter docs not change its nature. But what is the difference whether we call it a nuisance or not. "Nuisances always arise from unlawful acts. That which is lawful can never be a nuisance. Therefore, where the legislature, by an act that it is competent for it to enact, authorizes an act to be done, which would otherwise be a nuisance, the act is made lawful and is not a, nuisance, so far as the public is concerned, unless the power given by the legislature is exceeded." Wood on Nuisances, Vol. 1, p. 2, note. Note the words "so far as the public is concerned." Charter does not exempt it from liability to private property. A lucid and strong case in this connection is Trenton Water Power Co. v. Raff, 36 N. J. L. 335, a corporation authorized by law built a bridge across the Delaware river at a point below whee Jacob's creek enters it. The plaintiff owned a mill dam up that creek. The defendant's dam backed the water and injured the plaintiff's dam. The court held in an elaborate opinion that the plaintiff was entitled to the natural descent of the water and that the unobstructed flow was a part of his freehold as much as the title to the soil, of which the owner could not be deprived without his consent or compensation. It held that, "An action will lie to recover damages for an injury to property in the execution of work under legislative authority, if the injury be direct, or the work be done for the benefit of an individual or corporation with private capital, and for private emolument, even though the public be incidentally benefitted by it. An act of the legislature, authorizing one to erect a dam in a river which is a public highway, may be a justification so far as public interests are concerned, but will be no justification for a private injury, caused by the overflow of land of an individual proprietor. The legislature cannot deprive an individual of the advantages of a stream of water in its natural flow over his lands, or create an easement in his lands of the right to overflow, wthout providing compensation for the injury." The court distinctly said that such charter would exempt from indictment or any action for infringing public right, "but will be no justification for a private injury caused by the overflow of the land of an individual proprietor," citing many cases. It is not an open question anywhere, especially in West Virginia, under our decisions, that though a corporation have a charter for its work, yet it is liable for damaging private property. Even by the general law of Europe and the common...