Rogers v. Boom

• Decision Date: 04 April 1891
• Court: West Virginia Supreme Court
• Parties: Rogers v. Coal River Boom & Driving Co.

39 W.Va. 272

Rogers

v.Coal River Boom & Driving Co.

Supreme Court of Appeals of West Virginia.

Submitted January 2G, 1894.

Decided April 4, 1891.

1. Booms Estoppel.

A party who leases the river-bank in front of his land to another for the use of a boom to be operated in the river opposite said land, and who after the boom is constructed, receives rent year after year from the boom company for said land without protest, is estopped from objecting to the manner in which the boom is constructed.

2. Booms Evidence Damages.

In a case of this character it was error in the court to allow a witness to give his opinion as to the amount of damage that would be occasioned by the future washing of the plaintiff's bank.

8. Boo ms Da m a gES N UIs a n ce.

If a private structure or other work on land is the cause of a nuisance or other tort to the plaintiff, the law can not regard it as permanent, no matter with what intention it was built, and damages can therefore be recovered only to the date of the action; so, where a stream is wrongfully obstructed by a private dam or canal, the plaintiff injured can only recover damages to the date of the writ.

4. Booms Damages.

Where the damage complained of is occasioned by the erection of piers for a boom in the river, by constructing cribs of logs, and filling them with loose stone, and using them to catch and hold logs, which results in causing the current to flow against and wash plaintiff's bank, the damage occasioned thereby can not be regarded as of a permanent character, and a recovery can not be had at law of the entire damage in one action.

5. Booms Damages.

Damages for a continuing trespass, such as those arising from overflowing one's land, can only be recovered to the time of commencing suit therefor. Subsequent damage for the continuance of the trespass gives a new right of action.

Brown, Jackson & Knight and Payne & Green for plaintiff in error cited 23 W. Va. 452; 38 W. Va. 438; Woods, Landlord and Tenant, 704; Id. 358; Id. 688; 2 South 552; 4 Bos. & Pull. 290.

II. L. Broun for defendant in error:

I. Where the evidence is certified, instead of the facts proved,

the Appellate Court will consider it as upon a demurrer to evidence by the exceptor. 6 W. Va. Ill; 16 W. Va. 308; 21 W. Va 709; 24 W. Va. 186.

II. Where the injury is permanent and affects the value of the

estate, entire damages must be recovered in one action. 23 W. Va. 453; 26 W. Va. 787; 81 W. Va. 466; 112 Mass. 334; Sutherland on Damages, vol. 3, page 403, et seep

III. Opinions of witnesses acquainted with sbujeet-matter admissible to show amount of damages. 26 W. Va. 788, 796; 24 W. Va. 622, 674 and citations.

IV. Verdict should not be set aside though improper evidence admitted if it appears not to have prejudiced opposite party. 29 W. Va. 421; 33 W. Va. 56, 57.'

V. Not necessary to prove negligence in Trespass on the Case

under sec. 9, Art. III of Constitution. -16 W. Va. 402; 28 W. Va. 407, 484; 34 W. Va. 474.

VI. Instructions not applicable to the circumstances of the case as shown by the evidence are properly refused.

English, Judge:

This was an action of trespass on the case, brought in the Circuit Court of Kanawha county by Mahlon S. Rogers against the Coal River Boom & Driving Company to recover damages for injuries sustained by the plaintiff by the construction of a boom in Coal river opposite the lands of the plaintiff, located about two miles from the mouth of said river, and by causing the river bank, which belonged to the plaintiff, and had been leased to said company, to wash and cave. The defendant demurred to the declaration and to each count; and the demurrer was sustained.

The plaintiff thereupon filed an amended declaration, to which also the defendant demurred, and the demurrer was overruled, and the plea of not guilty was interposed, upon which issue was joined. The case was then submitted to a jury, who found a verdict in favor of the plaintiff for two hundred and fifty dollars. A motion was made to set aside the verdict, and grant the defendant a new trial, because the same was contrary to the law and the evidence, which motion was overruled, and judgment was rendered for the plaintiff, and the defendant excepted.

Several bills of exception were saved to the defendant during the trial, and during its progress the defendant by its counsel moved the court to give to the jury the following instructions, which are numbered respectfully 3, 4, 5, 8, and 9, which the court upon consideration refused to give.

"No. 3: The court further instructs the jury that if they find from the evidence that at the time of the injury complained of the plaintiff had leased to the defendant the river-bank alleged to have been injured for boom-purposes, with contemplation of constructing and operating a boom, wherein the defendant's boom was constructed, then the plaintiff can not recover for damages resulting from the continuance and operation of said boom, unless they further find that said injury was the result of negligence on the part of the defendant, in such construction and use."

"No. 4: The court further instructs the jury that the letting of the bank for the use of a boom, with knowledge at the time of the point of location of said boom, is, in the absence of a covenant to the contrary, an assumption by the lessor of all risks of damages or injuries to said banks resulting from a reasonable construction and use of said boom, and for such damages he can not, in such case, recover."

"No. 5: The court instructs the jury that if they find from the evidence that the plaintiff leased to the defendant the river banks alleged to have been injured, for the use of a boom, that the plaintiff assumed the risk of such damage as might result from the reasonable use of such boom; and the court further instructs the jury that if they further find that the defendant constructed, used, and operated its boom in a reasonable manner, they must find for the defendant."

"No. 8: The court further instructs the jury that if they find from the evidence that the plaintiffleased to the defendant the river bank, the alleged Injury to which is the cause of this suit, for boom purposes, he assumed the risk of all ordinary wear and tear resulting to said bank from the reasonable and proper construction and use of said boom; and that, unless they find from the evidence that the said boom was constructed and used in a wrongful, improper, or negligent manner, they must find for the defendant; and, further, that the burden is on the plaintiff to prove that said boom was constructed or operated in a wrongful, negligent, or improper manner."

"No. 9: The court instructs the jury that any person leasing property for a specified use, in tie absence of an express covenant to the contrary, assumes the risk of the ordinary wear and tear of such property resulting from such use, and the said lessee is not liable for damages to said property resulting from such use, unless caused by his wrongful or negligent act, "

To the opinion of the court refusing to give said instructions the defendant by its counsel excepted.

In considering the propriety and legality of these instructions let us look first at the contents of the lease. The plaintiff, in consideration of the sum of forty dollars, leased to the defendant a strip of land on the west bank of Coal river, between low-water mark and the top of the bank above high-water mark, from the upper line of his land to the point opposite the mouth of Indian creek, for the use of the boom belonging to said company for the period of one year with the right to renew the same from year to year, so long as the said company or its assigns maintained a boom at said place in Coal river, and fie right of way to a path along the top of the bank for men to pass up and down to attend to the said boom.

Thus it appears from the face of the lease itself that the river bank was leased for the use of the boom; a path and right of way for the employes along the fop of the bank was provided for, and the river-bank contained, as the evidence shows, about three acres of poor, thin soil. The fact that the defendant contracted to pay forty dollars per annum for it, would indicate that it was to be used for purposes other than farming; and the fact that so large an amount of rent was demanded shows that the plaintiff must have contemplated that this strip of land would receive. some harder usage than it would for ordinary purposes, When used for the purpose of catching and holding logs in a boom.

The character of the boom whether it was to be a stringboom or a boom with piers was not set forth in the agreement, but it was for the use of the boom belonging to said company. The plaintiff, in his testimony, states that when he leased ids bank it was for a string boom, and after the lease was made the boom was built on its present location and shape, which throws the water over against his land, and causes the bank to wash away.

The lease, however, was made in December, 1886, and forty dollars a year had been paid by the company and received by the plaintiff for six years at the time this suit was tried in 1893, making an aggregate of two hundred and forty dollars, or eighty dollars per acre for the land used, so that the plaintiff could afford to have his bank washed to some extent, and must have contemplated it when he fixed the rent. The plaintiff, then, leased his bank for the use of the boom. In wdiat manner it was to be used, other than for a passway for the employes, does not appear; but the boom company wanted that bank for the use of the boom. It may have been for the purpose of fastening logs or spars to, or it may be that they were aware that by displacing the water in the river with their logs and piers they would cause the water...