Pickens v. Coal River Boom & Timber Co.
| Decision Date | 05 April 1902 |
| Citation | 41 S.E. 400,51 W.Va. 445 |
| Parties | PICKENS v. COAL RIVER BOOM & TIMBER CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Unless an act is wrongful in the sense of being unlawful, it will not sustain a suit for damages.
2. 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.
3. 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.
4. 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.
5. Section 28, p. 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.
6. 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 artificial 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.
7. 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.
8. Permanent damages may not be given for the maintenance of a nuisance occasioned by an impermanent, movable, or reformable structure, like a boom; but, after a judgment obtained, the continuance of such nuisance will subject the nuisancer to exemplary or punitive damages.
9. Whether a boom is in too close proximity to a milldam 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.
10. A lessor who erects a boom in so close proximity to a milldam 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.
Error to circuit court, Kanawha county; F. A. Guthrie, Judge.
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 Mollahan, McClinti? & Matthews, for defendant in error.
DENT P.
Roman Pickens obtained a judgment in the circuit court of Kanawha county on the 24th day of April, 1900, against the Coal River Boom & Timber Company, for the sum of $12,190. The defendant, being dissatisfied therewith, assigns numerous reasons why the same is erroneous.
The first is the overruling of the demurred 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 unlawfully or wrongfully constructed, or the water power unlawfully or wrongfully obstructed. For failure in this respect both counts are bad. They should charge the act complained of was either 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, Torts, 93; Porter v. Mack, 50 W.Va. 581, 40 S.E. 459; Lawler v. Boom Co., 56 Me. 443. "Where the act or omission complained of is not prima facie actionable, it should be stated that the act was done wrongfully." 21 Enc. Pl. & Prac. 917; Glen Jean, L. L. & D. R. Co. v. Kanawha, G. J. & E. R. Co., 47 W.Va. 728, 35 S.E. 978; Guilford v. Kendall, 42 Ala. 651; McKenzie 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 he 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 (App. Code, p. 1071, § 28) 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 employés." 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 property was unlawfully 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 grantees 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. Sedg. Dam. 1110, 1111. 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. Driving Co., 41 W.Va. 593, 23 S.E. 919, 26 S.E. 1008, 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's Ex'rs v. Mayor, etc., of Brooklyn, 4 N. Y. 200, 53 Am.Dec. 357.
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. Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910. The second count charges the construction and maintenance of the boom in such negligent, unskillful, and unlawful manner that the plaintiff's natural fall and milling property were damaged 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. Driving 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 Buchanan v. Railroad Co., 48 Mich. 364, 12 N.W. 490, 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 exercise of each may render the other less valuable, there is no ground for complaint if it is considerate and reasonable." A navigable stream may be used for both...
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