White River Booming Co. v. Nelson

• Decision Date: 13 April 1881
• Citation: 45 Mich. 578,8 N.W. 909
• Court: Michigan Supreme Court
• Parties: WHITE RIVER BOOMING CO. v. NELSON. [*]

8 N.W. 909

45 Mich. 578

WHITE RIVER BOOMING CO. v. NELSON. ^[*]

Supreme Court of Michigan

April 13, 1881

A boom company, engaged in driving logs down a stream, is not an insurer that the riparian owner shall suffer no damage from such driving; but it is its duty to see that such proprietor suffers no greater damage in consequence of its connection with the logs than would result from the passage of such logs in a purely natural way. Such company has no right to so deal with the logs as to form dams and cause flowage greater than would otherwise exist, and is liable for damages resulting from excessive flowage caused by its own acts.

Error to Muskegon.

Smith Nims, Hoyt & Erwin, for plaintiff in error.

Stephenson & McLaughlin, for defendant in error.

GRAVES J.

Nelson being a riparian owner on White river brought this action on the case for certain damages alleged to have been caused by the booming company. He claimed that a distinct but exactly similar injury was committed in each of the years 1873, 1874 1875, 1876, 1877, and 1878, and employed a separate count for each year. The only variation in the counts was in the year in which the injury was alleged to have been done, and a reference, therefore, to the first will suffice for all the others. The actionable fault imputed to the booming company is charged in this wise--that "well knowing the premises but contriving and intending to injure and prejudice the plaintiff in this behalf, heretofore to-wit: On the first day of May, A.D.1873, at the township of Whitehall, the county of Muskegon aforesaid, and divers other days and times afterwards, and before the commencement of this suit, with certain booms, timber, logs, boards, pins poles, wood, ropes and chains, and other appliances, dammed up and obstructed the running and flowing of the waters of said White river as the same had run and flowed and still ought to run and flow, and thereby caused the waters of said White river to flow upon and cover the aforesaid lands of the said plaintiff, and to stand and remain upon the aforesaid lands of the plaintiff for a long space of time, to-wit: for the space of five months, and thereby destroyed the aforesaid products, pasture, meadow and growing crops and improvements of said plaintiff, and greatly injured the said lands and the timber thereon, and prevented the plaintiff from, and deprived him of, the use, tillage and cultivation thereof and depriving him of the products, produce and income and profits of said lands, whereby the said plaintiff has lost and been deprived a great number, to-wit, 500 tons of hay," etc.

Complaint is made that these various counts overlap, and that a claim is set up for repeated recoveries on account of the same flowage. But this is a misapprehension. It was the obvious design of the pleader to describe a flowage through a certain specified period of time in each year (Gould's Plead. c. 3, � 85,) and to effect this object he resorted to the expedient of a separate count for each year. The declaration may show that in this regard it is not framed with perfect accuracy and that there exists some formal imperfection. But there is nothing substantial; nothing which may be taken advantage of by exception. It is further objected that as to the several injuries alleged to have been committed in the years preceding 1877 the action was barred by section 7149, Comp.Laws, which limits the bringing of actions for trespass on land to two years after the accruing of the cause of action. There is no foundation for the point. The action is case for consequential damages and not trespass, and the legislature has seen fit to authorize case to be brought except in certain instances, of which this is not one, at any time in six years. Section 7148, Comp.Laws, subn. 7.

The plaintiff's evidence was in substance that in each of the years mentioned, the Booming Company dealt in such manner with the masses of logs running in the river that at the sorting ground below the plaintiff they were arrested and turned into jams, which caused the water to dam up and overflow his land and cut off certain of his crops and preclude him from making and getting others.

And on the part of the booming company the evidence was aimed to show that part of the overflow complained of was caused by heavy rainfalls, and that considering the great quantity of logs which...