Rogers v. Coal River Boom & Driving Co.

• Decision Date: 22 January 1896
• Citation: 23 S.E. 919,41 W.Va. 593
• Parties: ROGERS v. COAL RIVER BOOM & DRIVING CO.
• Court: West Virginia Supreme Court

23 S.E. 919

41 W.Va. 593

ROGERS v. COAL RIVER BOOM & DRIVING CO.

Supreme Court of Appeals of West Virginia.

January 22, 1896

Submitted June 22, 1895

Syllabus by the Court.

A declaration in case for injury to land from a boom held good on demurrer. English, J., dissenting.

Error to circuit court, Kanawha county.

Action by Mahlen S. Rogers against the Coal River Boom & Driving Company. Judgment on demurrer to the complaint for defendant and plaintiff brings error. Reversed.

W. S Laidley and H. L. Brown, for plaintiff in error.

Payne & Green and Brown, Jackson & Knight, for defendant in error.

BRANNON J.

The one question before us is the sufficiency of the second amended declaration, the case having been dismissed on demurrer to it. This declaration is in trespass on the case, and alleges that the plaintiff was owner of a tract of land bordering on the west side of Coal river, and that the plaintiff, on 17th December, 1886, by writing, leased to the defendant a portion of said land, describing the portion, for the use of the boom belonging to the defendant "as stated in the lease," and that at the time of the execution of said lease the defendant was engaged in constructing a string boom in said river opposite the river bank so leased, for the collecting of logs on plaintiff's side of the river against the bank so leased; and that defendant afterwards about November 1, 1889, wrongfully, unlawfully, and improperly built in the river opposite the leased bank a certain other boom with 14 piers, and wrongfully, unlawfully and improperly and without leave or license of the plaintiff so used said boom in collecting large numbers of logs and other timber on the opposite side of the river from plaintiff's land, and suffered the same there to remain that thereby the current of the river was obstructed, and diverted from its natural course, and made to run against the land of plaintiff so leased, washing away his soil and trees, undermining and destroying his land, both that leased and some not leased. It is said that the declaration is faulty because it does not give the provisions of the lease so that we may see whether its provisions have been violated. That suggestion might appear to have force if we regard the action as based solely on the lease, as one brought for its violation, but we are not at all compelled to so regard it. The fair construction of the declaration is that the lease was for the use of the string boom which was being constructed at its date on the opposite side of the river to collect logs on the side of the river leased by the plaintiff, and the use of the plaintiff's bank of the river contemplated in the lease was solely and only for that string boom, and that defendant constructed another and different kind of boom, long after the lease, and with it collected logs, not on the plaintiff's side, but on the opposite side, and thus threw the water against the plaintiff's side; in other words, did another act,--one independent of the lease,--damaging the plaintiff. This independent act,--the construction of the new boom and the collection of logs on the other side of the river--is not mentioned as an infraction of the lease. By mere implication we might say that, as the lease provided for a use of the river bank for collecting logs on the plaintiff's side of the river by means of a string boom on the other side, the erection of another boom and gathering logs on the opposite bank was a violation of the lease; but no express provision of that kind in the lease is suggested, and we cannot assume one; and the more logical theory is that the act complained of is one outside of and independent of the lease,--simply the construction of a pier boom, and gathering of logs on one side of the river, diverting the current from its old, natural direction, and damaging the riparian owner on the other side, just as if no lease had been made. It is not the misuse of the privilege accorded by the lease, but the construction of that other boom, that works the damage. The declaration negatived any license to do the act. If there was a license, it was for the defendant to plead it. If the lease authorized the act complained of, the defendant could show it as defense under the plea of not guilty. The declaration, in its drift, refutes the idea that is based on the lease; in effect denies that the act was justified by the lease. Why, then, mention the...