Pickens v. Coal River Boom & Timber Co

CourtSupreme Court of West Virginia
Writing for the CourtBRANNON
Citation66 W.Va. 10,65 S.E. 865
Decision Date04 May 1909
PartiesPICKENS. v. COAL RIVER BOOM & TIMBER CO. et al.

65 S.E. 865
66 W.Va.
10

PICKENS.
v.
COAL RIVER BOOM & TIMBER CO. et al.

Supreme Court of Appeals of West Virginia.

May 4, 1909.


Petition for Rehearing, Oct. 26, 1909.

1. Nuisance (§§ 65, 71*)—Liability to Private Individual.

A state 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.

[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 158-171; Dec. Dig. §§ 65, 71.*J

2. Evidence (§ 43*)—Judicial Notice—Res Judicata.

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

[Ed.. Note.—For other cases, see Evidence, Cent. Dig. § 64; Dec. Dig. § 43.*]

3. Action (§ 53*)—Judgment (§ 600*)—Limitation of Actions (§ 55*)—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.

[Ed. Note.—For other cases, see Action, Cent. Dig. 549-623; Dec. Dig. § 53;* Judgment, Cent. Dig. § 1120; Dee. Dig. 5 606;* Limitation of Actions, Cent. Dig. § 305; Dec. Dig. § 55.*]

Williams, J., dissenting.

(Syllabus by the Court.)

Appeal from Circuit Court, Kanawha County.

Action by Roman Pickens against the Coal River 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, MacCorkle & Chilton, and A. B. Littlepage, for defendant in error.

BRANNON, J. Roman 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 $7,-000, 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, 41 S. E. 400, 90 Am. St. Rep. 819, and 58 W. Va. 11, 50 S. E. 872, 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, 19 S. E. 401, 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, 23 S. E. 919, 26 S. E. 1008. 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, 40 S. E. 420, 88 Am. St. Rep. 875. 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

[65 S.E. 866]

pleaded or given in evidence. United States v. Bliss, 172 U. S. 326, 19 Sup. Ct. 216, 43 L. Ed. 463. 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 and 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, 41 S. E. 400, 90 Am. St. Rep. 819. This criticism seems to import that counsel think that if the boom cannot be denominated a nuisance, its erection an, d 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. (Va.) 245;. Watts v. Railroad, 39 W. Va. 198, 19 S. E. 521, 23 L. R. A. 674, 45 Am. St. Rep. 894; State v. Elk Island Boom Co., 41 W. Va. 796, 24 S. E. 590. 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 charter 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 does 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." 1 Wood on Nuisances, 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. Law, 335. A corporation authorized by law built a bridge across the Delaware river at a point below where Jacob's creek enters it. The plaintiff owned a milldam 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 benefited 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...

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32 practice notes
  • State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., No. 23831
    • United States
    • Supreme Court of West Virginia
    • 24 Junio 1997
    ...to run against the cause of action from the time of the complete erection of the nuisance.' Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 17, 65 S.E. 865, 867-68 (1909) (quoting St. Louis Ry. Co. v. Biggs, 20 Am. St. R 176). See also Patrick v. Sharon Steel Corp., 549 F.Supp. 1259, ......
  • Riddle v. Baltimore & O. R. Co., No. 10459
    • United States
    • Supreme Court of West Virginia
    • 13 Enero 1953
    ...River Boom & Driving Co., 39 W.Va. 272, 19 S.E. 401; Henry v. Ohio River Railroad Co., supra; Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 65 S.E. 865, 24 L.R.A.,N.S., 354. In point 5 of the syllabus in Oresta v. Romano Bros., Inc., W.Va., 73 S.E.2d 622, the Court held that damages......
  • State ex rel. Magun v. Sharp, No. 10985
    • United States
    • Supreme Court of West Virginia
    • 7 Agosto 1958
    ...of [143 W.Va. 600] Broaddus Institute v. Siers, 68 W.Va. 125, 69 S.E. 468, Ann.Cas.1912A, 920; Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 65 S.E. 865, 24 L.R.A.,N.S., 354; Cann v. Cann's Heirs, 45 W.Va. 563, 31 S.E. 923. As applied to the facts in the instant case, the authoritie......
  • Patrick v. Sharon Steel Corp., Civ. A. No. 81-0025-C(H).
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 27 Octubre 1982
    ...suit." Id. at 15, 50 S.E. 872. 549 F. Supp. 1266 In a second appeal involving the same parties,15 Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 65 S.E. 865 (1909), the West Virginia Supreme Court of Appeals reiterated its holding saying "plaintiff is not barred of a recovery for suc......
  • Request a trial to view additional results
32 cases
  • State ex rel. Smith v. Kermit Lumber & Pressure Treating Co., No. 23831
    • United States
    • Supreme Court of West Virginia
    • 24 Junio 1997
    ...to run against the cause of action from the time of the complete erection of the nuisance.' Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 17, 65 S.E. 865, 867-68 (1909) (quoting St. Louis Ry. Co. v. Biggs, 20 Am. St. R 176). See also Patrick v. Sharon Steel Corp., 549 F.Supp. 1259, ......
  • Riddle v. Baltimore & O. R. Co., No. 10459
    • United States
    • Supreme Court of West Virginia
    • 13 Enero 1953
    ...River Boom & Driving Co., 39 W.Va. 272, 19 S.E. 401; Henry v. Ohio River Railroad Co., supra; Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 65 S.E. 865, 24 L.R.A.,N.S., 354. In point 5 of the syllabus in Oresta v. Romano Bros., Inc., W.Va., 73 S.E.2d 622, the Court held that damages......
  • State ex rel. Magun v. Sharp, No. 10985
    • United States
    • Supreme Court of West Virginia
    • 7 Agosto 1958
    ...of [143 W.Va. 600] Broaddus Institute v. Siers, 68 W.Va. 125, 69 S.E. 468, Ann.Cas.1912A, 920; Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 65 S.E. 865, 24 L.R.A.,N.S., 354; Cann v. Cann's Heirs, 45 W.Va. 563, 31 S.E. 923. As applied to the facts in the instant case, the authoritie......
  • Patrick v. Sharon Steel Corp., Civ. A. No. 81-0025-C(H).
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 27 Octubre 1982
    ...suit." Id. at 15, 50 S.E. 872. 549 F. Supp. 1266 In a second appeal involving the same parties,15 Pickens v. Coal River Boom & Timber Co., 66 W.Va. 10, 65 S.E. 865 (1909), the West Virginia Supreme Court of Appeals reiterated its holding saying "plaintiff is not barred of a recovery for suc......
  • Request a trial to view additional results

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