Weller v. Missouri Lumber & Mining Company
| Decision Date | 11 December 1913 |
| Parties | GEORGE WELLER, Respondent, v. MISSOURI LUMBER & MINING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Carter County Circuit Court.--Hon. W. N. Evans, Judge.
REVERSED AND REMANDED.
L. F Dinning, L. B. Shuck, Garry Yount and W. J. Orr for appellant.
(1) Waters to be navigable must be so far navigable or floating in the natural state and in their ordinary capacity as to be of public use in the transportation of property. Waters which can be made navigable or floatable only by artificial means are not public highways. McKinney v. Northcutt, 89 S.W. 351, and authorities cited; Holden v. Mfg. Co., 65 Me. 215; Moore v. Sanborne, 2 Mich. 519; Ten Eyck v. Warwick, 75 Hun, 562; Haines v. Hale, 17 Ore. 180; Gould on Waters (3d Ed.), 107; Farnham on Waters No. 25. (2) The person suing for the obstruction of a navigable water must show that he has sustained a special injury differing not merely in degree, but in kind, from that sustained by the general public. Atlee v. Union Rocket Co., 21 Wall. 389; River Nav. Co. v. Railroad, 87 Ala. 154; Coburn v. Ames, 52 Cal. 387; Low v Kniwlton, 26 Me. 128; Breed v. Lynn, 126 Mass 367; Potter v. Railroad, 95 Mich. 389; Aspin v Bowman, 83 Wis. 54. (3) Prospective or speculative damages are not allowed for a temporary nuisance. Taylor v. Macguire, 13 Mo. 517; Wilson v. Weil, 67 Mo. 399; Saunders v. Brosius, 52 Mo. 50; Squires v. Chillicothe, 89 Mo. 226; Paddock v. Somes, 51 Mo.App. 320; Van Hoozier v. Railroad, 70 Mo. 145; Brown v. Railroad, 80 Mo. 457. (4) It is the duty of the injured party to make reasonable effort to lessen or avoid damages resulting from the wrong complained of. Douglas v. Stephens, 18 Mo. 362; Fisher v. Goebel, 40 Mo. 475; Waters v. Brown, 44 Mo. 302; Harrison v. Railroad, 88 Mo. 302; Peck v. Metal Co., 96 Mo.App. 212.
No brief for respondent.
This is an action for damages alleged to have been suffered by plaintiff as operator of a sawmill by reason of the obstruction of a navigable stream in which plaintiff floated logs. The trial resulted in a verdict for plaintiff, the jury assessing his damages at the sum of $ 550, and defendant has appealed.
The petition alleged that plaintiff, in November, 1911, was engaged in the operation of a sawmill on the banks of the Current river, a navigable stream, and that in the conduct of said business he was engaged in floating logs in said river to his sawmill; that all the logs received by plaintiff at his sawmill were either rafted or floated down said river to said mill, where the same were taken out of the water and manufactured by plaintiff into lumber for sale upon the various markets. It was alleged that defendant company was likewise engaged in floating logs and ties in said river, and that to facilitate its business and to enable it more easily to remove said logs from the water, defendant had constructed and maintained upon and across said river at various points near the location of plaintiff's sawmill certain obstructions for the purpose of arresting the progress of logs, said obstructions being commonly called booms, and which were so arranged and located in said river as to be removable, and when not in use could be so placed as not to interfere with the navigation of said river. That in November, 1911, defendant had constructed upon and across the waters of said river, above the location of plaintiff's mill, a certain boom for the purpose of arresting the progress of logs, and wilfully and maliciously, with the intent to injure plaintiff and deprive him of the right to float logs in said river to his sawmill, did so place said boom as to prevent plaintiff floating logs in said river to his sawmill, "thereby rendering his said mill entirely worthless, and causing plaintiff, at great expense to himself, to remove said mill to another place, where he could obtain the necessary logs for the operation of said mill." It is alleged that the expense of removing the sawmill to another place was $ 500 for which actual damages judgment is asked. Punitive damages in the sum of $ 2000 is then prayed for by reason of the willful and malicious and unlawful obstruction of said river.
After the court had overruled a demurrer to the petition, defendant filed as its answer a general denial.
Appellant makes the point that the petition does not state facts sufficient to constitute a cause of action and that its demurrer thereto should have been sustained.
Now it is a familiar principle that a demurrer to a pleading admits facts well pleaded and all inferences of fact that may be fairly and reasonably drawn therefrom (American Brewing Co. v. City of St. Louis, 187 Mo. 367; 86 S.W. 129), but not conclusions of law, nor conclusions of the pleader on the facts of the cause of action (Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543); it admits the truth of the facts stated in the pleading against which it is leveled and invokes the judgment of the court thereon as to the law concerning plaintiff's right of recovery (Pidgeon v. United Rys. Co., 154 Mo.App. 20, 133 S.W. 130). On demurrer, all reasonable inferences are indulged in favor of the pleading. [Mason v. Deitering, 132 Mo.App. 26, 111 S.W. 862.] A demurrer does not reach a prayer for relief ( Whitmore v. Yeager, 3 Mo.App. 582). In actions at law, a demurrer will not lie because the prayer for relief is not warranted by the averments of the petition; the court may grant any relief consistent with the case made by the evidence and embraced within the issues. [Baker v. Railway Co., 34 Mo.App. 98, 110; Carthage Natl. Bank v. Poole, 160 Mo.App. 133, 141 S.W. 729.] The averment of the petition under consideration that plaintiff's mill was rendered entirely worthless and that plaintiff was caused at great expense to remove it to another place where he could obtain the necessary logs for its operation, was a conclusion of the pleader; palpably so when it is observed that plaintiff had just alleged that the booms were temporary structures so arranged and located in the river as to be removable and that when not in use they could be so placed as not to interfere with the navigation of said river. Plaintiff charged an obstruction of a navigable river, i. e., a public nuisance (Georgetown v. Alexandria Canal Co., 12 Pet. 91, 9 L.Ed. 1012), and this charge was admitted by the demurrer. [Lepire v. Klenk, 169 Mich. 243, 134 N.W. 1119, 1120.] Now it is held that in an action for damages because of the maintenance of a public nuisance, special damages must be averred and proved. [Smiths v. McConathy, 11 Mo. 517.] The rule as announced in 29 Cyc. at page 327, is as follows: "Where a private individual has sustained any particular and special injury over and above that sustained by the public generally, as a direct result of an obstruction" (of navigable waters) "he may maintain an action to recover damages therefor; but if he has received no special damage an action cannot be brought by him. " Again, at page 328: "In an action by a private individual, the complaint must allege some special injury which he has sustained of a different character from the general injury to the public." The reason special damages must be alleged is that the law does not presume or imply damage to any particular individual from the public offense. [Hart v. Evans, 8 Pa. 13.] The gravamen of an action for obstructing a private way is the obstruction; in case of a public way it is the special injury to the plaintiff. It is not enough that the injury to him is greater in degree than the public generally suffer, if it be the same in kind. [Thelan v. Farmer, 36 Minn. 225, 30 N.W. 670.] It must be different in kind. [Pedrick v. Railroad, 55 S. E. (N. C.) l. c. 881; see, also, generally, Berry v. Railroad, 214 Mo. 593, 605, 114 S.W. 27; Scheurich v. Light Co., 109 Mo.App. 406, 84 S.W. 1003.]
In the case of Ireland v. Bowman, 114 S.W. 338, logs belonging to the owner of a mill on a navigable stream were caught and damaged by a dam constituting a nuisance and it was held that the measure of damages was the deterioration of the logs while detained, the value of labor in getting the logs over the dam, and any expense incurred by reason of the dam, and any diminution in the value of the log owner's property by reason of the nuisance.
In the case of Creech v. Humptulips B. & R. I. Co., 37 Wash. 172, 79 P. 633, the petition, in an action to recover damages caused by the obstruction of a navigable stream or slough, alleged generally that plaintiffs were thereby greatly delayed in marketing their logs, were put to great expense by reason of the obstruction, were unable to use their logging engine which was on the land, were unable to keep the hired help in their camps employed, and had been damaged in the sum of $ 500, and would be damaged thereafter in the sum of twenty-five dollars per day until the obstruction was removed. It was held that the petition, in the absence of a demand for a bill of particulars or a motion to make the same more definite and certain, was sufficiently specific to entitle plaintiffs to recover for the idleness of their logging engine and men, and for damages in being compelled to discharge men and employ others at a higher rate of wages.
In the case of Page v. Lumber Co., 53 Minn. 492, 55 N.W 608, 609, this language is used: "No general rule can be laid down for determining whether a pleading shows, or whether the evidence produced upon a trial tends to establish, a cause...
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