Weld v. Proprietors of Side-Booms in Androscoggin River

• Decision Date: 01 May 1829
• Citation: 6 Me. 93
• Court: Maine Supreme Court
• Parties: WELD v. THE PROPRIETORS OF THE SIDE-BOOMS IN ANDROSCOGGIN RIVER

6 Me. 93

WELD v. THE PROPRIETORS OF THE SIDE-BOOMS IN ANDROSCOGGIN RIVER

Supreme Judicial Court of Maine, Lincoln

May, 1829

[Syllabus Material] [Syllabus Material]

THIS was an action of trespass on the case, in which the plaintiff sought to recover damages for the loss of a large quantity of pine logs, by the breaking of the defendant's boom in a time of flood, in consequence of its having become rotten and defective through their negligence. The general question of the liability of the defendants was submitted to the court upon a statement of facts drawn up by a commissioner agreed upon by the parties for that purpose.

It appeared from his report, that the private statutes of March 15, 1805, Feb. 29, 1812, and Jan. 31, 1820, incorporating the proprietors, and regulating their tolls, were passed at the instance of the defendants; in pursuance of which they proceeded to erect three side-booms in Androscoggin river within the limits prescribed in their act of incorporation. The principal boom, called " the Great-carrying-place-boom," was capable of containing more than twenty thousand logs; and was extended from the west or Brunswick side of the river, across the channel, to within about ten or twelve rods of the Topsham-shore, and thence up the river, and nearly parallel to the bank, about seventy rods, forming a cul de sac of about twenty acres, the opening at the top being from forty to fifty rods wide.--The passage left open next to the Topsham-shore was closed in the year 1824 and ever afterwards, by a boom, erected by private persons owning logs in the river and usually dealing in lumber, among whom were the plaintiff and some of the defendants, which was called " the log-owners' boom." Between one and two miles farther up the river, the defendants erected another boom on the Topsham-side, called " the Merrill-boom; " and another on the Brunswick-side, called " the Twitchell-boom; " each capable of containing ten thousand logs. The Great-carrying-place-boom was supported by nine piers, lying in two ranges, erected at various times between the years 1818 and 1827; and composed of an exterior wall of timbers dove-tailed together, with chambers seven or eight feet apart, ballasted with stones. Some of these piers were not built in a workman-like manner, nor of suitable timber; and were somewhat decayed; and in most of them there was no ballast within several feet of the surface of the water in the time of the highest freshets. These decays were known only to some individuals of the corporation.

The defendants occasionally used the log-owners-boom for the delivery of logs from their own; and exacted toll for all logs detained in the river by either of them. The place of delivery for all logs, contained in either of the defendant's booms, was below the lower-boom; and when the logs in the upper booms could not be floated to this place, by reason of the great number of others obstructing the passage, the defendants paid the expense of hauling them by land.

The Twitchel-boom was secured to a tree on the bank, by a yoke, composed of two pieces of timber lying parallel to each other, with a cross-piece of oak, called a sword-piece, passing through each of their ends; all which, as well as the boom-pieces, were, after the disaster, found to be rotten. But these defects, which were wholly internal, were not previously known to the defendants. The Merrill-boom was strong and unbroken.

At the time of the disaster, which took place on the night of the 26th of April, 1827, all the booms were full of logs; with which also the surface of the river was covered for a large distance above the log-owners-boom. The flood was not quite as high as the freshet of 1820, nor as those of several previous years; nor as high by three feet as that of 1814; and the quantity of logs in the river was uncommonly large, many having been detained above, for want of water, in the two preceding years. This had been the case also in 1820 and 1824, each of which years had been preceded by low freshets. In the former of these years, the quantity of logs in the Great-carrying-place-boom had been as great as in 1827, if not greater; but the pressure would have been much less at the time of the disaster, had the passage closed by the log-owners'-boom, been left open.

The loss was occasioned by the breaking of the Twitchell-boom, and the Great-carrying-place boom; by which accident the plaintiffs logs, and all others in those booms, were precipitated over the falls, and drifted into Merry-meeting bay. But which boom was first broken did not appear. The latter was broken by the pressure of logs against the pier nearest to the Brunswick-shore, which was the oldest, the force being so great as to carry off the upper part of the pier, as far down as the upper tier of ballast, which was several feet below the surface of the water. The timbers of this pier, between the high and low water marks, were very much decayed. Two other piers, inside the boom, to which it was fastened, and which were built in the same manner, and were equally defective, were also carried away.

After the accident in April, the Great-carrying-place-boom was again stretched from one of the remaining piers to the Brunswick shore, being about twenty-four rods, secured only by the fastening of each end; and thus remained till November following; the defendants during that time, detaining logs within it, and exacting tolls as before. However this kind of security might suffice for the summer months, when the water was low, it was clearly insufficient against the autumnal floods; and this through the want of seasonable care on the part of the defendants. In November, therefore, it was broken by the flood; and the plaintiff's logs were swept off and lost, to the value of a hundred dollars. But before this time, the owners of the logs, in expectation of the usual autumnal freshets, ought to have rafted out their logs from the boom.

One of the directors of the corporation, and some of the members, knew the situation of the Great-carrying-place boom before the disaster, and deemed it insufficient; but this was unknown to the boom-master, and all the other officers, except that director. But the commissioner certified his opinion that competent skill and discernment would have pronounced the piers deficient; but that gross negligence was not imputable to the corporation, unless it legally resulted from the knowledge of the director.

As to the Twitchell boom, he was of opinion that considering the latent character of its defects, a prudent and diligent owner might well be presumed to be ignorant of them.

And he was also of opinion, that, had the passage closed by the log-owners' boom been always open, then the Great-carrying-place boom would probably have withstood any pressure which would have been brought against it; and that in such case the defendants would not have been liable.

Action sustained, and that the plaintiff is entitled to judgment.

Greenleaf and Mitchell, upon the facts thus found, argued against the liability of the defendants. The form of the action being in tort, the plaintiff evidently founds his claim on the violation, by the defendants, of some duty created by the statutes of incorporation. But no such duty is created. The defendants are merely authorized to " stop, raft, and properly secure" the logs for the owners. The statutes constitute them bailees for hire; and leave the measure of their liability, and the mode of remedy, to be determined by the rules of the common law. It is plain therefore that the remedy should have been in assumpsit, and not in tort.

But even as bailees, they are not liable. The benefits of the bailment being mutual and reciprocal, the defendants are bound only for ordinary care; and this care they appear to have taken. They were not bound perpetually to maintain booms, but only allowed to erect them; and the toll is granted for the custody of logs; not as a premium for insuring their safety.

The damage was occasioned by the erection of the log-owners' boom, which closed up the passage which the defendants had left open. This act was an illegal obstruction; and against the authors of it, and those only, the plaintiff has his remedy.

But if the defendants were liable as bailees, for the loss of logs from their boom, yet here they are not responsible, the loss in April having been occasioned by an extraordinary casualty. And as to the loss in November, it was the fault of the plaintiff not to have rafted out his logs before the autumnal floods.

Allen and Packard, for the plaintiff.

OPINION

The opinion of the court was read at the ensuing September term as drawn up by MELLEN, C. J.

In the examination of this cause, the first inquiry is, " What are the powers and liabilities of the defendants in their corporate capacity, created by the several statutes which make a part of this case, or resulting from the principles of the common law. The act of March 15, 1805 incorporating the defendants, is the principal basis of the plaintiff's claim against them. By the first section they were incorporated " for making, laying and maintaining side booms, in suitable and convenient places in Androscoggin river, from Androscoggin bridge to the narrows of said river, in Brunswick and Topsham." By the fourth section the corporation are authorized to receive of the " respective owner or owners of logs and other lumber by them stopped in said river, rafted and properly secured for the owner, the following fees, & c." By the fifth section it is declared that " it shall be lawful for the said corporation, by their several agents and servants, to be appointed as aforesaid, to hold and retain any logs or other lumber, by them stopped in said river,...