Pratt v. Brown

• Decision Date: 08 October 1895
• Citation: 106 Mich. 628,64 N.W. 583
• Court: Michigan Supreme Court
• Parties: PRATT v. BROWN ET AL.

64 N.W. 583

106 Mich. 628

PRATT v. BROWN ET AL.

Supreme Court of Michigan

October 8, 1895

Error to circuit court, Saginaw county; Robert B. McKnight, Judge.

Action by Edward L. Pratt against Addison T. Brown and others to recover for defendants' unreasonable interference with the driving of plaintiff's logs. There was judgment for plaintiff, and defendants bring error. Reversed.

William H. Sweet and W. A. Burritt (Chauncey H. Gage, of counsel) for appellants.

C. W Perry, for appellee.

McGRATH C.J.

This action is brought to recover damages, by reason of what is claimed to be unreasonable interferences by defendants, who are the owners of a milldam known as the "Beaverton Dam," with the plaintiff in the use of the Tobacco river for the purpose of driving logs. The following is a crude sketch of the river and its tributaries:

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The river, in its natural state of water, is from 80 to 100 feet in width. The dam is between 500 and 600 feet long, extending across the stream proper, and over a broad river bottom lying inside of an oxbow, formed by a bend in the river. A sketch will assist in understanding the situation.

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The south branch is the principal stream, and is really the river proper. The milldam is located four miles above the boom company limits, and about a mile below the junction of the middle branch and north branch with the main river. The "sand bar" is about eight miles from the mouth of the middle branch. Plaintiff's roll ways were located on the middle branch, at points between the sand bar and a point four miles above the mouth of the middle branch. One Schunk commenced flooding and driving logs on the south branch on March 28th. Plaintiff commenced on the middle branch April 1st. When Schunk's logs reached the junction of the middle branch with the main river, but a few of plaintiff's logs had passed that point. Defendants had placed a boom stick across the main channel of the river at a point about 500 feet above the dam, and when these drives reached the boom stock, a break had occurred in the dam just south of the log chute, reducing the water on the flats below the floor of the chute, and so low that the logs would not pass over the flats. Schunk's logs filled the river for one and a half miles above the dam, and plaintiff's logs extended back several miles above the mouth of the middle branch, and were held for some time. Finally, a ditch was made across the flats and through the dam, and the logs were released. Defendants contend (a) that the river was not navigable for this purpose without the aid of floods, (b) that the break in the dam was caused by the flooding, and (c) that defendants right to maintain the dam to the concurrent use of the stream, and to a detention of the logs until a reasonable time within which to repair the dam had elapsed, was not sufficiently guarded in the instruction given to the jury.

1. The dam was constructed in 1892, with reference to the use of the stream for this very purpose. The detention occurred in April, 1893, and the testimony clearly tended to show that the river had been actually used for this purpose for upwards of 25 years. There was testimony tending to show that, east of the mouth of the middle and north branches, the river was navigable at this season of the year in ordinary stages of water, and without flooding. There were no log dams on the main river west of the Beaverton dam and east of the Clare dam in Clare county, some 15 miles above. The log dams were in the tributaries, and were used principally to float the logs into the main river. The court was fully warranted in submitting the question to the jury. The instructions given upon the point were full, and correctly stated the rules of law applicable. The following questions were submitted to the jury, and both were answered in the affirmative: "Is the Tobacco river navigable for driving logs?" "Can it be navigated without the use of dams?"

2. The testimony did not warrant the submission to the jury of the question as to plaintiff's responsibility for the break in the dam.

3. The court was requested by defendants to instruct the jury as follows: "As to the question whether the defendants had a right to prohibit the opening of the dam as claimed by the plaintiff, I charge you that, if the stream is periodically navigable, the parties would have equal rights in its use,-the plaintiff to float his logs, and the defendants to maintain and use the dam,-and it would be the duty of each to so use the stream as not to unreasonably...