Reeves v. Backus-Brooks Co.

• Citation: 83 Minn. 339
• Decision Date: 31 May 1901
• Docket Number: Nos. 12,577 - (114).,s. 12,577 - (114).
• Court: Minnesota Supreme Court
• Parties: NELSON H. REEVES v. BACKUS-BROOKS COMPANY.<SMALL><SUP>1</SUP></SMALL>

83 Minn. 339

NELSON H. REEVES v. BACKUS-BROOKS COMPANY.¹

Nos. 12,577 - (114).

Supreme Court of Minnesota.

May 31, 1901.

Action in the district court for Hennepin county to recover $300 damages for trespass, and to restrain defendant from maintaining its boom, logs and other obstructions in the Mississippi river in front of plaintiff's land and from interfering with his riparian rights. The case was tried before Harrison, J., who at the close of plaintiff's testimony granted a motion to dismiss the action.

From an order denying a motion for a new trial, plaintiff appealed. Reversed.

T. A. Garrity, for appellant.

Rockwood & Schwager, for respondent.

COLLINS, J.

The facts in this action stand conceded. It appears that the plaintiff is the owner and in occupation of a five-acre tract of land on the shores of the Mississippi, above the city of Minneapolis, in Hennepin county, and having a river frontage of about three hundred thirty feet. His father owns a tract of the same area lying adjoining on the south, and this is rented by the plaintiff and used in connection with his own. In front of these five-acre tracts the river is about fifteen hundred feet wide. The defendant company owns and operates a sawmill a short distance below, or south, on the river. In 1885 the Northern Mill Company leased of plaintiff the right to drive piling, string booms, and store logs in the river in front of his premises, and through this agreement piling was driven in the shallow water opposite his land, between low-water mark and the channel, booms strung, and logs boomed along the shore, annual rent being paid for the privilege. In 1894 the defendant succeeded to the property of the Northern Mill Company, and continued to use and occupy the water and shore as had its predecessor, paying rent therefor. In the year 1899 this arrangement terminated, and the defendant has ever since refused to pay for the use of the rights theretofore held under the lease. Piers and piling had been put into the navigable portion of the river, and defendant since its refusal to pay rent has built other piers opposite plaintiff's land. It has also maintained a boom with the north end fastened on his tract of land, near the north line, and the lower or south end fastened upon the shore of his father's land, near his south line. This boom is hung so that within it, and along the shore, the open space of water does not exceed, at any one point, fifty feet in width, and just outside of it are defendant's logs, its log "trail," and sorting gap.

The result has been that since early in 1899 the unnavigable portion of the river in front of plaintiff's land, and in front of his father's, has been occupied, without the consent of either, and against the will of each, with the defendant's booms, piling, and piers, and mill logs brought down the river to be manufactured into lumber. This occupation has been with permanent structures, has been notorious and continuous, and by means thereof the owners of the abutting lands have been cut off and deprived of all access to, and communication with, the navigable channel of the stream. This deprivation has been complete, and apparently in total indifference and disregard of plaintiff's riparian rights and privileges. This action was brought to recover damages for the alleged intrusion and trespass upon plaintiff's property, and to obtain a perpetual injunction prohibiting defendant from maintaining its booms and piling and piers and other obstructions, and from storing its logs along the plaintiff's shores in a manner calculated to deprive him of his right of access to the channel of the river from his own land. At the conclusion of the trial of the case, which was by the court without a jury, defendant's counsel moved to dismiss upon the ground that no right to recover had been established by the testimony. This motion was granted, the court giving its reason as follows, according to the record: "I fail entirely to find that the evidence sustains any allegation that the property of the plaintiff is in any manner specially damaged any different from the damage of the general public." The appeal is from an order denying plaintiff's motion for a new trial.

The action was improperly dismissed, and the motion for a new trial should have...