Pickens v. Boom
| Decision Date | 05 April 1902 |
| Citation | 51 W.Va. 445 |
| Court | West Virginia Supreme Court |
| Parties | Pickens v. Coal River Boom & Timber Co. |
1. Damages Act Must be Unlawful.
Unless an act is wrongful in the sense of being unlawful, it will not sustain a suit for damages, (p.. 448).
2. Riparian Owner Floatable Streams Damages.
A citizen or corporation lawfully using a floatable or navigable stream in a proper manner is not liable to a mill or other riparian owner for unavoidable damage or injury caused by such use. (p. 449).
3. Floatable Streams Erection of Booms.
The erection of a boom in a lawful manner for the purpose of catching and holding logs is a proper and lawful use of a navigable or floatable stream, (p. 451).
4. Erection of Booms Negligently Maintained.
Unless such boom be negligently, unlawfully or improperly erected or managed the corporation erecting or maintaining the same is not liable for any injury or damage occasioned thereby to others using the banks and bed of such stream for milling or other purposes, (p. 447).
5. Mill Owners Constitutional Right.
Section 28, page 1071, Code, created no new right in mill owners, but only placed the existing constitutional and common law rights of such riparian owners beyond judicial construction to the contrary., (p. 446).
6. Mill Water Poiver Boom Damages.
The erection of a boom, in such close proximity to a mill without consent of the owner thereof as to impede the flow of the water and thereby cause a deposit of sand and other sediment immediately below the dam of such mill whether a natural fall or an artficial structure in such manner as to destroy in an appreciable degree the water power of such fall or dam, creates an unlawful nuisance and renders the owner of such boom liable to the mill owner for the damages occasioned by the creation and continuance of such nuisance, (p. 450).
7. Measure of Damage Mill Owner Nuisance.
The measure of damages is the loss sustained by such mill owner during the continuance of such nuisance and is to be ascertained by the rental or profit earning value of such property, as though such nuisance did not exist, (p. 450).
8. Permanent Damage Boom Nuisance.
Permanent damages may not be given for the maintenance of a nuisance occasioned by an impermanent, movable or re-formable structure like a boom, but after a judgment obtained the continuance of such nuisance will subject the nuisancer to exemplary or punitive damages. (p. 452.)
9. Mill Dam Boom Erected Too Close.
Whether a boom is in too close proximity to a mill dam depends on the fall of the stream and the effect that such boom has on the flow of the waters above the same and is a question of fact for the determination of a jury from the evidence produced, (p. 453).
10. Mill Dam Boom Erected Too Close.
A lessor who erects a boom in so close proximity to a mill dam as to injure the water power of such dam and thereby creates a nuisance against the same is equally liable with his lessee with notice for the continuance of such nuisance, (p. 453).
Error to Circuit Court, Kanawha County.
Action for damages from the maintenance of a boom by Roman Pickens against the Coal River Boom & Timber Company. From a judgment for plaintiff, defendant brings error.
Reversed.
Brown, Jackson & Knight and Payne & Payne, for plaintiff in error.
Chilton, MacCorkle & Chilton and Mollohan, McClin-tic & Matthews, for defendant in error.
Dent, President:
Roman Pickens obtained a judgment in the circuit court of Kanawha County on the 24th day of April, 1900, against the Coal River Boom and Timber Company for the sum of twelve thousand, one hundred and. ninety dollars. The defendant being dissatisfied therewith assigns numerous reasons why the same is erroneous.
The first is the overruling of the demurrer to the declaration and each count thereof. The first and third counts charge the defendant with the erection of a boom in Coal river below the plaintiff's mill thereby obstructing the water in such manner as to cause a deposit of sand in the bed of the stream below and materially injuring the water power of the mill. In neither count is it charged that the boom was unlawfuly or wrongfully constructed or the water power unlawfully or wrongfully obstructed. For failure in this respect both counts are bad. They should either charge the act complained of was unlawful or wrongful. There can be no legal damage unless the act complained of is unlawful or wrongful. A wrong imports unlawfulness and there can be no wrong unless a legal right is invaded. "That which is right and lawful for one man to do cannot furnish the foundation for an action in favor of another." Cooley on Torts, 93; Porter v. Mack, 50 W. Va. 581, (40 S. E. R. 459); Lawler v. Baring Boom Company, 56 Maine 443. "Where the act or omission complained of is not prima facie actionable, it should be stated that the act was done wrongfully." 21 En. Plead. & Prac. 917; Railway Co. v. Railway Co., 47 W. Va. 728; Guilford & Co. v. Kendall, 42 Ala.; Mc-Kenzic v. Railroad Co., 27 W. Va. 306. The allegations in the declaration may be true and yet the defendant be guilty of no wrongful act, for he may have lawful authority to do that which be is charged with and not have violated the defendant's legal rights. Hence it is necessary to allege the act complained of was wrongfully, unlawfully or negligently done or some language of like import should be used so that the defendant may be put to the plea of not guilty. Plaintiff's counsel attempt to justify this omission because the statute relating to booms, section 28, App. Code, p. 1071, provides, "That nothing in this act shall be so construed as to deprive the owners of mill property and other proprietors on the said river and branches thereof from recovering damages for injury to their property by the said corporation, their agents or employes." This instead of justifying the omission authorizes the use of the words wrongful or unlawful. The object of this reservation is to preserve the constitutional and common law rights of mill owners, and to set at rest any claim that might be made that authority given to a boom company to erect its boom took away from mill owners the right to demand damages if their mill properly was unlawT fully injured thereby. The act relieves the boom from being a public nuisance, yet it makes wrongful injuries to private property caused by its construction still unlawful. It may be a private nuisance. This provision which amounts to nothing more than the reservation of common law and constitutional rights was made necessary from the fact that certain authorities place the granting of public franchises upon the same platform with the public agents of the government and hold that when they have not exceeded the power conferred' on them and when they are not chargeable with want of due care, no claim can be maintained for any damage resulting from their acts. Sedgwick on Damages, 110, 111. This holding has been repudiated by a great weight of authority, but our legislature desired to place the matter beyond the power of judicial construction to the contrary. This provision sets at rest any claim of exemption from any unlawful damages to private property, a boom company may attempt to assert by virtue of its charter and the public nature of its employment. It is placed on the same basis as a private citizen so far as the rights of other private citizens are concerned. The act says to the boom company, you may have the public franchise and the right to erect a boom but you must pay to every private citizen whose property is unlawfully injured by you such damages as may be occasioned thereby. If the boom company accepts, it acquires the right of floatage, the right to erect a boom and the right to use the stream in a reasonable manner so long as it does no unlawful damage to the property rights of another. If it does such unlawful damage its charter furnishes no protection against the same. This is the proper conclusion that was reached in Rogers v. Coal River Boom and Driving Co., 41 W. Ya. 593 (23 S. E. 919), and is the same conclusion that was arrived at on the former hearing of this case. It is equivalent to saying that "An act done under lawful authority, if done in a proper manner, can never subject the party to an action whatever consequences may follow," Radcliffe v. Mayor, 4 N. Y. 200 (53 Am. Dec. 337). For these reasons the demurrer to the first and third counts should have been sustained from the fact that they fail to allege that the act complained of was done improperly, negligently, unlawfully or wrongfully. Admitting, however, this to be true, is the court justified in reversing the judgment by reason thereof? Not if the second count be good and all the plaintiff's evidence was admissible thereunder. Wood v. Block, 29 W. Ya. 244.
The second count charges the construction and maintenance of the boom in such, negligent, unskillful and unlawful manner that the plaintiffs natural fall and milling property were dam- aged thereby. While the word wrongful is not used in this count, yet the words negligent and unlawful fully supply its place and render the count good. Rogers v. Boom Co., cited. These words "negligent, unskillful and unlawful" have no reference to the State's rights as representative of the public for these it acquired by virtue of its charter, but they refer to the plaintiff's private rights as to which it is alleged the boom was so negligently, unskillfully and unlawfully constructed and managed as to impair or destroy them in whole or in part and resulted in the plaintiff's damage. The question naturally presents itself as to what were the legal rights of the plaintiff which the defendant unlawfully invaded. In the case of Buchanon v. The Grand River Log Co., 48 Mich. 364, it was held, "The right to obtain water power from a stream for milling purposes and the right to use the stream for floatage of logs modify each other and though the...
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