Rainy Lake River Boom Corp. v. Rainy River Lumber Co.

• Decision Date: 04 May 1908
• Docket Number: 2,708.
• Citation: 162 F. 287
• Parties: RAINY LAKE RIVER BOOM CORP. v. RAINY RIVER LUMBER CO., Limited.
• Court: U.S. Court of Appeals — Eighth Circuit

162 F. 287

RAINY LAKE RIVER BOOM CORP. v. RAINY RIVER LUMBER CO., Limited.

No. 2,708.

United States Court of Appeals, Eighth Circuit.

May 4, 1908

Charles Loring (Halvor Steenerson, on the brief), for plaintiff in error.

C. J Rockwood (A. Y. Merrill, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

This is an action of replevin, in common form, instituted by the defendant in error (hereinafter designated the Lumber Company), against the plaintiff in error (hereinafter designated the Boom Company) to recover the possession of 500,000 feet of pine saw logs, alleged to be of the value of $7,500.

The answer pleaded that the Boom Company was organized for the purpose of improving, driving, and handling logs in the stream known as the Rainy Lake river, and that for such purpose it had taken possession of a considerable part of said stream, upon which no other corporation organized for such purpose had made improvements or taken possession, in aid of driving or handling logs therein; that its power to do so was granted by the statute law of the state of Minnesota (Laws Minn. 1889, c. 221, Sec. 2, as amended by Laws Minn 1905, p. 106, c. 89); that it has established and charged reasonable and uniform toll for booming, sorting, rafting handling, and driving logs on said stream through said works; that the rate it established and charged was 35 cents per thousand feet, board measure, for booming and sorting saw logs; and that between the 18th day of April, 1905, and the 8th day of October, 1906, the Lumber Company had turned into its boom and had driven and floated upon said river into its works 27,305,664 feet of saw logs, bearing a designated stamp at the end, and on the side certain marks; and that for such service it held the logs for tolls, costs, and expenses, amounting to the sum of $9,556.98, together with interest since the 8th day of October, 1906. The answer admits that the logs were of the value of $7,500.

The Lumber Company replied, tendering the general issue as to the new matter set up in the answer, and further alleged that said Rainy Lake river is the international boundary between the United States and Canada, a colony of Great Britain; that by treaty made in 1842, between the United States and Great Britain, said river was made a navigable stream and highway, open and free to the citizens and subjects of the United States and Great Britain; that the center of said stream is the northerly boundary of the state of Minnesota; and that said state had no jurisdiction or authority over the traffic and commerce upon said stream, and was without jurisdiction or authority of any kind beyond the center thereof. It alleged that the statute laws of Minnesota are of no effect, because one-half of the river is beyond the jurisdiction of the state, and are in conflict with the treaty above mentioned, etc. It then charges that the Boom Company had wrongfully and unlawfully constructed entirely across said river a boom, which was designed to and did stop all of the logs floating on said river, and has so maintained it, except as it from time to time opened the boom and permitted them to pass through, and that it had wrongfully and unlawfully maintained such boom entirely across said stream, to stop and detain all logs floating on the river. It further alleged that the logs in question had been cut from timber owned by the Lumber Company upon lands in the province of Ontario, Canada, that the mill owned by it is situated at the town of Rainy River in said province, and that it employed the International Boom Company, a corporation engaged in driving logs upon the river, to take charge of and drive its logs in the season of 1905 and 1906, and to deliver the same at its mills in the town of Rainy River, which it did, except as hindered and prevented by the boom constructed by the defendant company, which was erected some three or four miles above the town of Rainy River, where the Lumber Company's mill was located. The reply charged that, without the consent and against the will of the Lumber Company and of the International Boom Company, said Boom Company stopped and detained said logs described in the petition.

At the conclusion of the evidence, both parties requested of the court a directed verdict. The court granted the request on behalf of the Lumber Company and refused that of the Boom Company. The rule of law and procedure in this jurisdiction is well established that, where both parties ask the court to instruct a verdict, both affirm that there is no disputed question of fact to be submitted to the jury, and that every disputed question of fact is concluded in favor of the prevailing party, and that the only questions open to review on writ of error are: Was there any substantial evidence to support the court's finding upon the facts? And was there any error in the application of the law? Beuttell v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654; U.S. v. Bishop, 125 F. 181, 182, 60 C.C.A. 123; Empire State Cattle Co. v. Atchison, T. & S.F. Ry. Co., 147 F. 459, 77 C.C.A. 601; Roth, Executrix, v. Mutual Reserve Life Ins. Co. (recently decided by this court) 162 F. 282.

So much of the said amendatory act of 1905 of Minnesota as is pertinent to this controversy, in substance, is as follows: It authorized the corporation formed for the improvement of any stream and driving or handling logs therein, which shall have taken possession of such stream or any considerable portion thereof, upon which no other corporation so organized has taken possession or made improvements, to improve such stream by clearing and straightening the channels thereof, closing sloughs, erecting sluiceways, booms of all kinds, sluicing and flooding dams, etc., or otherwise as may be necessary. 'But such corporation shall in no case, in any manner, materially obstruct or impede steamboat navigation or driving or handling logs. ' The corporation is required to serve the public equally and reasonably, and for a reasonable compensation. 'Every such corporation which shall so improve a stream and so keep in repair and operate its works so as to render driving logs thereon reasonably practicable and certain, may charge and collect reasonable and uniform tolls upon all logs driven, sluiced, or floated on the same, and may take possession of all logs put into such streams so as to impede the drive, when the owners thereof or their agents shall not have come upon the stream adequately provided with men, teams and tools, for breaking the rollways and driving such logs in season for making a thorough drive down such stream, without hindering the main drive, and shall also, at the request of the owner of any logs, put into said stream, take charge of and drive the same down and out of such stream, or down such stream so far as their improvement may extend, and charge and collect therefor of the owner or party controlling said logs reasonable charges and expenses for such services. ' The act gave to the corporation for such tolls a lien on the logs, and authorized it to seize a sufficient amount to pay the tolls and to make sale thereof upon giving ten days' notice. The act further provided:

'That any corporation formed for the improvement of a stream which is in whole or in part, a boundary between them and an adjoining state or country and authorized to drive logs or maintain booms or dams in such stream, shall have authority to purchase and hold stock in corporations in such adjoining state or country created for similar purposes upon the same stream or to consolidate or unite with such corporation in such adjoining state or country whenever the purpose for which the corporation in this state is organized can be better effected thereby. * * * Provided that all dams and other works erected under the authority given by this act shall be so constructed, used and operated as to facilitate and expedite the driving and handling of logs upon the stream upon which the same may be erected, and the corporation making such improvements hereunder shall have no right to stop logs destined to points below its works on said stream, except where dams have been constructed to accumulate water for sluicing logs and flushing the river below the same, and in such case, shall not detain logs in any part of the river so as to form a jam or to prevent the prompt delivery of logs destined for points below the works under authority of this act.'

It is observable that there are some positive provisions, in the nature of limitations, imposed by this statute. While it empowered the Boom Company to take possession of a stream of water, it must be for the purpose of aiding and driving or handling logs thereon, 'but such corporation shall in no case, in any manner, materially obstruct or impede steamboat navigation or driving or handling logs;' and, second, it may take possession of said logs put into such stream, if they so impede the drive when the owners shall not come upon the stream adequately provided with men, teams, and tools etc., for breaking the rollways and driving such logs in season for making a thorough drive down such stream without hindering the main drive, and it may, on request of the owner of the logs, take charge of the same and drive them down and out of the stream, or as far as its improvements go, and make charges therefor. There is no allegation in the answer that the Lumber Company's logs were so put into said river as to impede the drive, or that it came upon the stream with its logs, without adequate men and equipments for handling and driving the same. Nor is there any allegation in the answer that the Boom Company took charge of said logs at the instance...