Wallace v. Pine Tree Mfg. Co.

• Decision Date: 02 December 1921
• Docket Number: No. 22399.,22399.
• Citation: 150 Minn. 386,185 N.W. 500
• Parties: WALLACE v. PINE TREE MFG. CO.
• Court: Minnesota Supreme Court

150 Minn. 386

185 N.W. 500

WALLACE

v.PINE TREE MFG. CO.

No. 22399.

Supreme Court of Minnesota.

Dec. 2, 1921.

Appeal from District Court, Morrison County; John A. Roeser, Judge.

Action by John G. Wallace against the Pine Tree Manufacturing Company. Verdict for plaintiff, motion for judgment notwithstanding the verdict or for new trial denied, and defendant appeals. Reversed, with directions.

Syllabus by the Court

Plaintiff was driving timber on the Mississippi river between Lake Itasca and Lake Irving, while defendant's logs were being driven by Connor & Wilson under a written contract with defendant. Plaintiff recovered a verdict against defendant because of alleged wrongful use of the waters of the river. It is held:

That the written contract under which the driving was done discloses that Connor & Wilson were independent contractors, and that there is no evidence warranting a finding that the contract does not express the true relation between the parties.

No facts or circumstances were shown from which an inference would be permissible that defendant assumed control over the use of the dams and waters by which the logs were transported, or gave Connor & Wilson any orders or directions with reference thereto.

Liability could not be created on the theory that the work let to Connor & Wilson could not be done without causing injury or damage to plaintiff, for the river could be properly used by any one for transporting logs and timber products. E. E. McDonald, of Bemidji, A. H. Vernon, of Little Falls, and Clapp & Macartney, of St. Paul, for appellant.

M. A. Spooner, of Bemidji, and Elmer A. Kling, of Little Falls, for respondent.

HOLT, J.

Plaintiff in the spring of 1919 was driving logs, ties, and pulpwood on the Mississippi river between Lake Itasca and Lake Irving, near Bemidji. He brought this action to recover damages on account of the wrongful interference by defendant with the waters of the river by means of the operation of certain dams while its logs were driven behind plaintiff's. He recovered a verdict of $6,000. Defendant appeals from the order denying its motion for judgment notwithstanding the verdict or a new trial.

[1] The defendant is a corporation engaged in the manufacture and sale of lumber. It has for years operated a sawmill at Little Falls, and secured timber and logs from 1915 to 1919 in part from Itasca State Park and adjoining territory. In 1915 a contract was made with Connor & Wilson a logging firm, to cur and deliver the logs on board of cars at Lake Irving. At the expiration of that contract, and on August 22, 1918, defendant again made a contract with Connor & Wilson by which the latter agreed to cut, haul, drive, and deliver loaded on cars at Lake Irving all the pine, spruce, tamarack, and other timber suitable for mercantile sawlogs which defendant should mark or designate to be cut on certain described lands. The contract is very lengthy and specific. Connor & Wilson agreed to cut all timber marked by defendant that will make sawlogs acceptable to it; to cut all timber where it is smooth to 6 inches at the top; to cut all logs, where timber is not broken, into lengths from 12 feet upward, and as long as might be directed by defendant. The logs were to be square butted, well trimmed, and cut in a good and workmanlike manner and to the entire satisfaction of defendant. The logs cut were to be banked on Itasca and Elk Lakes, and driven to Lake Irving during the driving season following the cutting and hauling and there loaded on cars on a spur track of designated size to be constructed by Connor & Wilson at their expense, except they were not to furnish the rails and anglebars. Connor & Wilson were to construct and maintain, at their own expense, all dams and other improvements required for the driving of said logs to where the same were to be loaded, and were to pay all damage for overflow and all other charges of whatsoever nature in securing, raising, or maintaining a head of water on Lake Itasca, and all other lakes and streams required for driving the logs. The minimum to be loaded on a car was to be designated by defendant, but such minimum should not to burn slashings to the satisfaction of the state authorities, and were to pay for suitable sawlogs left standing, lying, or being on any of the lands to be cut or on any logging road at the rate of $11 per M feet, and the same for logs left along streams and lakes, except deadheads or sunken logs. Connor & Wilson were to board in their camps free of charge agents appointed by defendant to look after its interests under the contract. For the work to be performed by Connor & Wilson defendant agreed to pay them $11 per M feet at certain specified times for the logs cut, driven, and loaded under the contract; and defendant was to furnish or cause to be furnished the rails and angle bars for the spur track mentioned, to equip the cars upon which the logs were to be loaded, but was not to be responsible for the delays or shortage of cars by the railroad company. It was mutually agreed that Connor & Wilson should cut all the logs designated, and drive and load them as early as possible during the driving season of 1919; the logs were to be scaled on the landing where banked by competent scalers agreed on, each to pay half the wages of the scalers, but Connor & Wilson were to board them free, or, at the request of either party, the surveyor general of the district might scale the logs; Connor & Wilson agreed to deliver the logs free of liens; should Connor & Wilson fail or neglect to perform the conditions of the contract, then defendant in its discretion might take possession of the logs and of the property of Connor & Wilson used in the work, and complete the contract, and the reasonable expense of so doing to be paid by Connor & Wilson; if defendant purchased additional timber adjoining the lands to be cut, Connor & Wilson were to log the same in the manner and for the price stipulated for the timber on the lands described in the contract; Connor & Wilson were to open and keep separate accounts on their books showing the disbursements and liabilities on all matters relating to operations under the contract, and showing the actual cost of the logging operation, the accounts to be at all times open to the inspection of the auditor of defendant so that it might be advised of the actual conditions when payments are to be made to Connor & Wilson and for other purposes; and lastly that, should Connor & Wilson faithfully perform the obligations resting upon them within the time specified, they were to have an additional payment of $1 per M feet, when the work was so completed.

Under this contract Connor & Wilson cut and had banked on Elk and Itasca Lakes over 9,000,000 feet of logs by the middle of April, 1919, some 5,000,000 thereof being in or on Elk Lake, which opens into Itasca by a creek a few rods in length. Upon this creek was a sluice dam by which the waters in Elk Lake could be held back and raised above those in Itasca. The outlet of Itasca Lake is the Mississippi river, and across the river about a quarter of a mile from the lake is a dam with gates and sluiceway. Ten or 12 miles below is another dam by which waters can be accumulated so as to float logs over the 5-mile repids below, called Phelps Rapids. Some 10 or 15 miles further down La Salle river the outlet of La Salle Lake comes in. There was a dam at the outlet of the last-named lakes by which a 9-foot head of water could be accumulated. The dam at the outlet of Lake Itasca is under the control of the State Forestry Board. The one at La Salle appears to be owned by one Busch. Connor & Wilson in the fall of 1918 made arrangement for a permit from the Forestry Board to raise the water in Itasca and purchased from Busch the right to fill the La Salle Lake to...