Watts v. Tittabawassee Boom Co.
| Decision Date | 21 December 1883 |
| Citation | 17 N.W. 809,52 Mich. 203 |
| Court | Michigan Supreme Court |
| Parties | WATTS v. TITTABAWASSEE BOOM CO. |
A boom company is chartered for the purpose of facilitating the floating of timber down streams, and any entire obstruction of the channel, impeding the natural and free passage of cribs and logs, is prima facie, unlawful, and wrong. Whether the delays and obstructions complained of were proper acts under the charter authority is a question for the jury, and the case should have been submitted to them.
Under the pleadings, the question of negligence is not necessarily involved; the action is case, and the motives of the defendant's agents are immaterial.
Error to Midland.
M.H Stanford, for plaintiffs and appellants.
Jno. Moore, for defendant.
Plaintiffs during the years 1874, 1875, 1876, 1877, and 1878, were engaged in manufacturing and transporting square oak timber to market. The lumber was obtained in Gladwin county, on one of the tributaries of the Tittabawassee river, and the latter was used by them in running the timber down to the Saginaw during each of those years. It was a navigable stream for floating rafts, logs, and timber, from Edenville to its mouth. The defendant is a corporation; was organizcd in 1864 and during the years above mentioned was engaged in the business of running, driving, booming rafting, and delivering logs on the Saginaw, Tittabawassee, Chippewa, and Pine rivers and their tributaries. The plaintiffs, in their declaration, state their cause of action in six different counts, and allege, in substance, that the Tittabawassee is a navigable stream; that in each of the five years above mentioned they placed in said river rafts of square timber to be floated down the river, and that the defendant obstructed the navigation of the stream by means of booms placed across the river, whereby the plaintiffs' rafts were stopped, delayed, broken up, and some of the timber lost. Each count avers that the defendant placed its booms across the river, intending to prevent the plaintiffs from proceeding down the river with their timber, and the last three counts state that the defendant wrongfully, willfully, and unlawfully obstructed the navigation of the river by means of the booms. The cause of action as stated really being the act of the defendant in obstructing the navigation of the river without any right to do so, intending thereby to prevent the plaintiffs from floating their timber down the stream. Defendant pleaded the general issue. The cause was tried by jury; at the close of the testimony the court directed a verdict for the defendant, and judgment was entered in accordance therewith. The plaintiffs bring error.
The return contains all the testimony given on the trial, and the only error assigned is the court's instruction to the jury. The statute under which the defendant corporation is organized, sufficiently apprises the parties of what the defendant may lawfully do, and the evidence shows it has been conducting the business authorized ever since its organization, and there is no question made by the parties but that its field of operation extended to those portions of the Tittabawassee river where the obstruction complained of were made or occurred. The defendant in doing its business placed a boom across the river a short distance above the village of Midland, known as Pier boom, and at a point about seven miles above the mouth of the river placed another, known as the Bryant trip, these two being among, if not the only, obstructions of which plaintiffs complain. At least, it is claimed that the booms thrown across the river at each of these places caused the other obstructions from which plaintiffs claim to have been injured. The logs which the defendant had charge of were placed in the river above the booms, many of them coming in from the tributaries of the Tittabawassee, and the plaintiff's logs, when they entered the river, were preceeded by several miles of logs several feet deep. The Tittabawassee empties into the Saginaw river, and it is the business of the defendant to take the promiscuous mass of logs, float them down the Tittabawassee, and at the booms separate and put them into rafts, and in that condition deliver them to their respective owners along the Saginaw river or at the mills. The defendant has no control over the amount of logs to be put in the river, nor the manner of putting them in, and neither puts in any logs itself nor causes them to be put in. Many times it is necessary to stop the mass of logs going down the Tittabawassee river to allow those in the tributaries to enter it, and vice versa, in order to secure to each person an equal chance in the use of the river, and when this is done, and the river is full, the tendency is to cause a jam. In order to separate the logs, and raft them, it is frequently necessary to place them in side or rafting booms, and many times considerable river space is required for that purpose. The Bryant trip is used for the purpose of stopping the logs and letting them through in the side booms.
It does not appear from the evidence that the Bryant trip was used for any other purpose. Three booms were evidently intended to facilitate the navigation of the stream, and are supposed to be placed at the most advantageous points for that purpose. We think the proofs clearly show that the logs could not be safely handled without placing them into rafts on the Tittabawassee river. When stopped, the logs form into a jam or dense mass, piled one upon another, from bank to bank, so that a raft of timber above or in the jam cannot be moved any faster than the mass of logs, until those below have been displaced or carried down the stream. The evidence shows the plaintiff's timber rafts were run down into the jams which formed above the pier boom and Bryant trip, and were then delayed, and were moved no faster than the logs forming the jams. No other obstructions are complained of. It is claimed by defendants that the testimony tends to show that whenever rafts reached the boom or trip they were permitted to pass with as little delay as possible.
The statute under which the defendant corporation was organized, authorized the formation of corporations for the purpose of "running, driving, booming, and rafting logs" on any of the streams or waters within this state. They have power to acquire, use, and hold, by lease or purchase, all such real and personal estate as may be necessary for the purpose of carrying on the business of the corporation. The act further provides that such boom or booms shall be so constructed and used, as far as practicable, as to allow the free passage of all boats, vessels, crafts, logs, timber, lumber, and all other floatables along such waters. Power is also granted to make all necessary contracts "for driving, booming, rafting, and running logs." Laws 1864, p. 24,�� 1, 4. By the Laws of 1873, section 14 was amended so that the proviso above referred to reads as follows: "and provided further, that such boom or booms shall be so constructed and, so far as practicable, used as to allow the free passage of boats, crafts, logs, timber, lumber, and other floatables along such waters." This section was again amended in 1875, but the foregoing provision, in relation to the construction of booms, was retained, and has since remained the same. Laws 1875, p. 30; Laws 1881, p. 239.
Under its charter the defendant has the power and right, on the streams where it may lawfully do business, to construct, use and maintain all necessary booms for its business, provided that such booms shall be so constructed and, so far as practicable, used as to allow the free passage of boats, vessels, logs, and other floatables along such waters. The location, extent, manner of construction, and number, is left to the determination of the defendant, subject only to the restrictions mentioned. Any person has a right to use the stream to the extent he may choose, provided he does not encroach upon the rights of any other person to do the same thing. Navigable streams are to be used in common and for commercial purposes, and no one person or company of persons, under enactments of the legislature or otherwise, have the right to monopolize their use. They may be used by all persons having business upon them, and when many persons make use of them, and to the extent of their full capacity, there is danger from encroachments upon each others' rights, and it is entirely proper for the government to regulate their use under such circumstances, and it may very properly authorize corporations to look after and control, within reasonable regulations, their use by persons having business thereon. For this...
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