Thunder Bay River Booming Co. v. Speechly

• Decision Date: 26 February 1875
• Citation: 31 Mich. 336
• Court: Michigan Supreme Court
• Parties: Thunder Bay River Booming Company v. George Speechly and another. [1]

31 Mich. 336

Thunder Bay River Booming Company v. George Speechly and another. ^[1]

Supreme Court of Michigan

February 26, 1875

Heard January 21, 1875; January 22, 1875.

Error to Alpena Circuit.

Judgment affirmed, with costs.

Marston Hatch & Cooley, for plaintiff in error.

A McDonell, for defendants in error.

Cooley J. Graves, Ch. J., and Campbell, J., concurred. Christiancy, J., did not sit in this case.

OPINION

Cooley, J.:

The defendants in error, plaintiffs below, are in the possession and use of a water-mill for the manufacture of lumber, situate on Thunder Bay river, and known as the Broadwell mill. The defendants below are in like possession and occupancy of what is called the Trowbridge mill, about three miles further up on the same stream. They appear to operate this mill for cutting lumber, but use the dam by which the power is obtained for the purpose mainly of accumulating water to facilitate their operations as a company for running, driving and booming logs. The declaration in the case, after reciting the facts of the occupancy and use of their mill by the plaintiffs, and of their right to an unrestricted flow of the water in the river for the purpose of operating the same, alleges that the defendants did, on the eleventh day of June, 1872, and on divers other days and times, between that day and the commencement of suit, wrongfully and injuriously raise and open certain flood-gates in and attached to the Trowbridge mill-dam, and keep and continue the same open, and did attach to said dam, and on the top thereof, slash-boards aud other contrivances for the purpose of stopping the water of said stream, and from thenceforth, during all the time aforesaid, unlawfully and wrongfully, stopped, diverted and turned large quantities of water of the said stream away from the plaintiff's saw-mill, and stopped, prevented and hindered the water of said stream from running or flowing in its usual course to said saw-mill, and from supplying the same with water for the necessary working thereof, whereby the plaintiffs for want of sufficient water could not during that time use their said saw-mill, or follow, use or exercise their calling or trade therein, in so large, extensive or beneficial a manner as they might and otherwise would have done, but were thereby during all that time deprived of the use and enjoyment of their said mill, and of the benefits, profits, gains and advantages which they otherwise might and could have made in carrying on their trade and business therein.

On the trial it was shown that the Broadwell mill was constructed by Mrs. Broadwell in 1859, and operated by her every season until she sold to plaintiffs in the spring of 1872; that plaintiffs took possession and started up that spring, and ran the mill day and night, and had all the conveniences to continue to do so until they were prevented by the flooding by the defendants; that the mill property included Thunder Bay river in front as a part thereof; that the mill was capable of cutting from eight to twelve thousand feet of lumber every twelve hours, and was dependent on the river for power; that the dam belonging thereto created a pond eighty rods long and sixty rods wide, with a ten feet head, which would hold from one and a half to two million feet of logs; that the Trowbridge mill was built in 1861, and had more than one water-wheel; that it did not run nights in 1872, and only the small water-wheel was run in the day time; that plaintiffs, in the spring of 1872, entered into a contract with one Cicero, by which he was to furnish them with three million feet of logs, over the Trowbridge dam, in 1872, about one million feet of which was run into their pond in the spring; that plaintiffs were to take them at the Trowbridge dam, just over the same, run them to their mill pond, manufacture them into lumber, and deliver the lumber on a dock on Thunder Bay, about five miles distant; that their compensation was to be five dollars per thousand feet, and the whole cost of their labor would be about two dollars per thousand; that plaintiffs sawed about six hundred thousand feet under this contract, but were prevented from sawing the remainder, for the following reasons:

The Trowbridge dam was originally constructed in the usual manner of building dams attached to water-mills, with sluice ways and gates to allow the water of the stream to flow gradually and continuously. Defendants, in order to create floods, erected in June, 1872, three large flooding gates and two small ones, and a main sluice, with slash-boards abreast of the sluice, and planks set up endways, so as to cut off the whole flow of water with the exception of what went through the mill when running; these boards were put on for the purpose of detaining the water in the dam, and when removed, and the gates opened, the water ran down to plaintiffs' mill in such large quantities as to prevent their running the same, and after the head in the Trowbridge dam was thus run off, the gates shut down, and slash-boards put on, the flow of water would be shut off entirely, except what would pass through the Trowbridge mill through the flume, and that the effect upon plaintiffs' mill was to render it useless for want of water while thus shut off at the Trowbridge dam after using the supply of their own pond; and while the floods thus obtained lasted, the waters came down with so much velocity, and in such large quantities, as to throw the machinery of plaintiffs' mill out of order, and prevent their running their mill until the flood subsided. The supply of water in plaintiffs' dam, when the water above was shut off, would only operate their mill about two hours. Between the plaintiffs' mill and the Trowbridge mill are about three miles of rapids, upon which logs coming down in the spring of 1872 had jammed. The operations of defendants, as a booming company under the laws of the state, extend above and below the Trowbridge dam, excepting that portion of the river included in plaintiffs' premises. To get the logs thus jammed down the stream, the defendants commenced flooding by means of the Trowbridge dam, and in the manner above explained, on June 11, 1872. The occasions and the effects of the flooding, and the intermediate periods of scarcity, were enumerated by witnesses, and evidence was given that, on or about the 27th of August, Cicero, seeing that plaintiffs, because of the hindrances aforesaid, would be unable to perform their contract, took the logs remaining in the pond, about four hundred thousand feet, and run them down the river to other mills to be sawed, and plaintiffs, after that date, had no logs to saw. Plaintiffs could have obtained logs, but it would have been useless in consequence of the acts on the part of defendants, of which they complain. Until defendants commenced flooding, plaintiffs run their mill night and day; they then ascertained they could not run nights, but kept the night men in their employ for several nights thereafter, remonstrating meanwhile with defendants, and expecting and hoping they would desist from their wrongful conduct. They finally shut down their mill on the 26th of August, but kept one force of seven men two or three days thereafter.

It further appeared that the quantity of logs run on this river by defendants varied from thirty-six million feet in 1868, to ninety-three million feet in 1873. The evidence of the plaintiffs was, that only a third or a fourth of all was run during the spring freshets, and the reason why more were not run at that time was, the want of room in the river below the rapids, so that they had to wait until room was made by sawing the logs first run; and after the spring freshets they could only run...