Pickens v. Coal River Boom & Timber Co

• Decision Date: 25 April 1905
• Citation: 50 S.E. 872,58 W.Va. 11
• Court: West Virginia Supreme Court
• Parties: PICKENS. v. COAL RIVER BOOM & TIMBER CO.

58 W.Va. 11

50 S.E. 872

PICKENS.

v.COAL RIVER BOOM & TIMBER CO.

Supreme Court of Appeals of West Virginia.

April 25, 1905.

WATERS AND WATER COURSES — BACKWATER— DAMAGE TO MILL—LIMITATIONS—VERDICT—IMPEACHMENT.

1. An owner of a mill damaged by backing of water by a boom, lessening the working power of his mill, may recover damages from the owner of the boom.

2. If the owner of a boom leases it to another to be operated as a boom, and at the time of the lease the boom is a private nuisance damaging a mill on the stream above the boom, the owner of the boom is liable to the mill owner, notwithstanding the lessee may, by addition to the boom, increase its power to damage the mill.

3. In an action for damage to real property from a private nuisance, continuous, but not permanent in character, the statute of limitation of five years does not begin to run from the beginning of the nuisance, but on the actual occurrence of damage from it. There may be recovery for damage for five years before the action, though the nuisance and damage from it began more than five years before action.

[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, § 304.]

4. Measure of damages and evidence thereof in action for damage to a mill from a boom.

5. Affidavits of jurors are not admissible to prove that the plaintiff in an action treated them to liquor during the trial, on a motion to set aside a verdict in his favor for that cause.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. New Trial, § 290.]

(Syllabus by the Court.)

Error from Circuit Court, Kanawha County.

Action by Roman Pickens against the Coal River Boom & Timber Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Payne & Payne and Brown, Jackson & Knight, for plaintiff in error.

Chilton, McCorkel & Chilton, A. B. Littlepage, and Mollohan, McCliutic & Mathews, for defendant in error.

BRANNON, P. Roman Pickens owned a water gristmill on Coal river, in Kanawha county, and the Coal River Boom & Timber Company constructed a log boom on the river below the mill; and Pickens, claiming that the obstruction of the natural flow of water in the river by the boomworks caused gravel, sand, and mud to settle in the bed of the river, instead of going on with the current— so much so that the sediment or deposit rose up to be even with the falls at the mill— sued the boom company for damage to the mill property. Pickens recovered a verdict and judgment, which were set aside in thiscourt The report of the case in 51 W. Va. 445, 41 S. E. 400, 90 Am. St. Rep. 819, will state more fully the outline of the case. On a second trial Pickens obtained a verdict and judgment for $5,000 damages, and the boom company brought the case to this court.

Objection is made to instruction 1 of the plaintiff because it told the jury that, if the boom did in fact work damage to the mill, the finding should be for the plaintiff. It is argued that it denies the right of the defendant to locate and use its boom franchise in a reasonable manner, even though it was not chargeable with negligence in locating or operating the boom. "It is not lawful for one proprietor to impede or diminish the ordinary flow of water so as to materially interfere with the enjoyment of other proprietors." Gould on Waters, § 218. "Where there has been an injurious diminution in the flow of a stream, to the use of which a mill owner is entitled, he may recover compensation for such loss. And where a mill owner is prevented from running his mill by an interruption of the natural flow of a stream, he may recover the value of the use of such mill during the period of the interruption. And the determination of the rental value may be the measure of damages." 3 Joyce on Damages, § 2140; 2 Farnham on Waters, §§ 546, 547. We shall not again discuss this law question. It is res judicata, from the effect of our former decision, that, if the boom damaged the mill, Pickens had a right to recover. The reason for so holding will be found in the two opinions on the former decision of this court I think that decision, in that result is right; but it is foreclosed, right or wrong.

The objection to instructions 4 and 5 for plaintiff is that they give as the measure of damages the rental value of the mill "for the time" the mill was stopped, whereas the opinion of Judge Dent said that the measure "is what the mill would have been worth during such deprivation of its use." It is said that Pickens sought to heap up damages, and, by the use of the word "for" in stead of "during, " mislead the jury to a fictitious rental value. We do not see that the point is substantial, the difference material, or the word misleading. It would be straining the point to reverse a long trial for this cause.

Objection is made to plaintiff's instruction 6. It told the jury that if the boom company secured a charter and a location for its boom, and made it large enough to catch logs, and afterwards the boom was leased to the Coal River Boom & Driving Company to operate for catching logs, and if the lessee company had used the boom and additions which said lessee had made, and if the "location, building, and operation of the said boom caused the injury to the plaintiff, " then the defendant could not escape liability on account of having made the lease. The ar gument against the instruction is that the lessee company had added six cribs or piers to the eighteen existing at the date of the leasing of the boom, and nothing in the lease warranted this increase, and that, if the boom was not a nuisance when leased, the defendant was not liable, and that this instruction withdrew from the jury that question. It did not do so. It says, "If the jury further find that the location, building, and operation of the boom has caused the injury to the plaintiff"; thus demanding, as a test of liability, that the original location, building, and operation of the boom caused the damage. Under this instruction, damage merely from addition by the lessee would not make the lessor company liable. "If the owner of land, through which the water course runs, erects a dam across it which sets the water back on the proprietor above, and then leases the land with the nuisance upon it, he gives with the lease implied permission to the lessee to keep up the dam, and he thus becomes a participant with the lessee in the wrong while the dam is maintained as it was when he gave the tenant possession." Cooley on Torts, 725. If a landlord let premises already a nuisance, he and the lessee are, both or either, liable for the continuance. The landlord cannot shift the liability to other shoulders. And even if the lessee by some work add to the nuisance, but not by a separate, independent work, but one used along with the instrument of nuisance let to him, the lessor is still liable, though the injury come from both the work as it was when leased, and the additional nuisance coming from the addition made by the lessee. The injury is the common fruit of the two, though lessor and lessee both contributed. How can you divide the injury, especially in such a case as this? Where the lessee creates, originates an independent, separate work, unauthorized by the lessor, the lessee is liable only. Where it becomes a nuisance only by the lessee's act, and the landlord has not contributed, only the lessee is liable. 21 Am. & Eng. Ency. L. (2d Ed.) 721; 1 Jaggard on Torts, 225; 1 Kinkead on Torts, 99; Leahan v. Cochran (Mass.) 60 N. E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 515, 516, 520. These principles are not denied, but it is said that the instruction fails to allow the jury to say whether the boom was a nuisance when leased. As shown above, it makes it indispensable that the jury should find it to be, as originally located, the cause of injury.

Complaint is made that an instruction asked by the defendant was refused. It would have informed the jury that, if the waterfall at the mill had been lessened by the boom, then, "unless the injury was done within five years next before the suit, " the jury could not find for the plaintiff. There are two answers to this complaint. This is the case of a continuing, but removable, nuisance. As held in the former decision, theplaintiff could recover for five years next before suit. It is not the case of a permanent, irremovable nuisance, doing injury at its start, accomplishing its harm at once and for all time, so that limitation starts from the completion of the boom; but it is continuing, each day's injury being a new wrong. The deposit of sand in the bed of the stream may have been, must have been, gradual, creeping slowly up the river, and not harming the waterfall until long after tne construction of the boom. So it was held in our former decision in this case, and this is res judicata. See Watts v. Norfolk R. Co., 39 W. Va. 190, 19 S. E. 521, 23 L. R. A. 674, 45 Am. St. Rep. 894; Eells v. Chesapeake & O. Ry., 49 W. Va. 65, 38 S. E. 479, 87 Am. St. Rep. 787. This instruction designs to tell the jury that limitation started with the completion of the boom, because it says that if the waterfall had been lessened "by the location, construction, or operation of the boom, " then, unless that injury was within five years before suit, there could be no recovery. The instruction did not put the proper theory under the statute of limitations. The damage ensuing continuously, recovery could be had as the damage came. That it was the purpose by the instruction to deny recovery if the building of the boom was more than five years before suit may be asserted, because the instruction totally denies any recovery on the hypothesis which it states, whereas, if such were not its import, it would have allowed recovery within five years. Secondly, if I misconstrue the instruction, and it puts the proper rule, then its refusal is not error, for the reason that instructions of the plaintiff clearly told the jury that there could be no recovery for damage...