Sweeney v. Chi., M. & St. P. Ry. Co.

• Decision Date: 18 March 1884
• Citation: 18 N.W. 756,60 Wis. 60
• Court: Wisconsin Supreme Court
• Parties: SWEENEY v. CHICAGO, M. & ST. P. RY. CO.

60 Wis. 60

18 N.W. 756

SWEENEY

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, Lincoln county.Eldred & Bumb and E. B. Lords, for respondent, M. W. Sweeney.

J. W. Cary, D. S. Wegg, and C. W. Briggs, for appellant, Chicago, M. & St. P. Ry. Co.

TAYLOR, J.

This appeal is from an order overruling the demurrer of the appellant to the complaint of the respondent. The complaint of the plaintiff was intended to set out a cause of action in favor of the plaintiff against the defendant on account of the obstruction of the navigable waters of the Wisconsin river by reason of the maintenance of a railroad bridge by said defendant across said river, which obstruction caused the destruction of a raft of lumber owned by the plaintiff, while he was attempting to pass such raft between the abutments of said bridge.

There are two counts or statements of the plaintiff's cause of action set out in the complaint. In the first statement of his cause of action, after alleging that prior to November 29, 1878, the defendant had constructed a bridge over said river, and alleging that the river is a public highway and navigable for boats and rafts, he makes the following allegations: “That defendant built said bridge with stone abutments, piers, and piles driven into the bed of the stream, and extending into deep water, and across said river, and making the main span, towards the west end of said bridge and the right side of said river, the only available passage for boats and rafts of lumber and logs, which said span was duly established as the channel-span of said bridge; and that defendant accordingly constructed guide-booms at each end of said span, and extending up the river, to secure the passage of boats and lumber through the said channel, and maintained the same for a number of years, and until the year 1878, when said guide-booms were removed as hereafter set forth; that a short distance above said bridge there is a bend in the river, which said river, from flowing nearly west, flows southerly from said bend, through the bridge, and that all the principal current and volume of said river is thus swept towards the right bank, and against the west end of said bridge, and through the channel span aforesaid; and that there is an island in the river, just above the bridge, and extending from the middle of the river nearly to the left side, so that the only natural passage at the point mentioned is on the right side of the river, and without the guide-booms aforesaid no boats or rafts of lumber could pass the said bridge in safety. Plaintiff further alleges that in the year 1878, and for several years prior to that time, he was engaged in running rafts of lumber from the upper Wisconsin to points on the Mississippi river, into whose waters the Wisconsin flows; that on or about the twenty-ninth day of November, 1878, he arrived at said bridge with a fleet consisting of four rafts of lumber, consigned to St. Louis, Missouri; that plaintiff approached said bridge, expecting that defendant still maintained the guide-booms aforesaid, as, with plaintiff's knowledge, it had done theretofore; but that defendant had willfully, negligently, and carelessly removed the said guide-booms, and failed to maintain the same; and, in consequence thereof, the plaintiff's rafts were swung around and driven by the current with great violence upon defendant's said bridge, and wrecked, and large quantities of his said lumber broken up, lost, and destroyed.” This is followed by statements showing the damage sustained by the plaintiff in attempting to pass the bridge with his raft.

In his second statement of facts he alleges that the defendant wrongfully and unlawfully built the bridge over the river near Woodman, in Grant county, and maintained it there without guide-booms or other mode of construction to effect a safe passage of boats, lumber or water-craft. He then alleges the navigability of the river at the place, and that he was engaged in running logs and lumber on said river during the year 1878, and for several years prior thereto. These allegations are followed by the following statements: “Plaintiff further alleges that in disregard of the plaintiff's right, and the rights of the public, to the free and uninterrupted use and navigation of said Wisconsin river, the defendant wrongfully and unlawfully built said bridge with stone abutments, piers, and piles driven into the bed of the stream and extending out into deep water and across said river, and thereby blocking up and obstructing the same, so that no boats nor rafts of lumber or logs could in the year 1878, nor can they now, pass the said bridge in safety; and that said bridge was in said year 1878, and ever since has been, and still is, a hinderance and obstruction to the navigation of said Wisconsin river. Plaintiff, further complaining, alleges that on or about the 29th day of November, 1878, he attempted to pass the said bridge with a fleet consisting of four rafts of lumber, consigned to St. Louis, Missouri; that said rafts were skillfully and carefully managed by a competent pilot and crew, but it was impossible to avoid all the abutments, piles, and piers of said bridge; and that plaintiff's said rafts were driven by the current of said river, with great violence, upon defendant's said bridge and wrecked, and large quantities of his said lumber broken up, lost and destroyed; and that said collision did not occur through any fault or neglect on the part of the plaintiff or his agents.”

The defendant demurs to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The circuit court overruled the demurrer. After a careful reading of the complaint we think the demurrer was properly overruled.

The learned counsel for the appellant insists that because the complaint does not in express terms show that in the construction and maintenance of said bridge the defendant has violated the provisions of either sections 1605 or 1837, Rev. St. 1878, it does not show a cause of action. These sections read as follows:

Sec. 1605. “Every person or corporation that maintains any dams or bridges across the Wisconsin river, shall also maintain at one side of the slide over such dam, and at each end of the channel span of such bridge, a guide boom, constructed in such manner and of sufficient length to secure the safe passage of all rafts, lumber, and water-crafts over the slide of such dams and through the channel span of such bridge; and such boom, at its upper end, shall be securely attached to some pier or other firm structure. This section shall not apply to any bridge below the city of Portage, until the channel span thereof shall have been established by the engineer of the United States, in charge of the improvement of said river, nor to the bridge across said river within the limits of said city.”

Sec. 1837. “When it shall be necessary, in the construction of a railroad, to erect a bridge or arched culvert over any highway, street, turnpike, or plank-road, it shall be sufficient to construct the same so as to give a clear passage-way of twenty feet, or two passage-ways of fourteen feet each. All bridges now or hereafter constructed across the Fox or Wisconsin river shall be constructed or modified, and such reasonable alterations...