Alabama Lumber Co. v. Keel, 125 Ala. 603

Alabama Lumber Co. v. Keel

125 Ala. 603 | Ala. | 1899

McCLELLAN, C. J.

If the facts are as deposed to by the plaintiff and his witnesses- — -if the defendant floated such masses of timber into the boom as to create a jam in the boom and up the river-along plaintiff’s land, covering the surface of the stream and rising above the surface for 'several feet and of course in consequence extending much below the surface — even, it is inferable, to the bed of the -stream in places, and thereby the water was raised and thrown out upon plaintiff’s land to his damage, or, whether raised or not higher than it would have been, in the absence of the jam, if the current by reason of the timbers was diverted 'from the -channel -and made to run across plaintiff’s land, -carrying away his fences and cutting away the soil -of his land, the defendants are liable to damages to him, though they had a right to construct and use the cross-boom, though it was properly constructed, and though they used all care and diligence to prevent the formation of the jam as the timbers came into the boom, and to relieve the jam after it had been form ed. On this state of -case their wrong and negligence consists 'in floating logs and timbers -down the river to the boom in such numbers and masses as that the jam and consequent damming up of the stream so as to raise the water and throw it upon plaintiff’s land or t-o divert its -current across the same was inevitable; and their unavailing efforts to prevent the jam and to relieve it, serve but to accentuate or make clearer their fault in having thus overtaxed the capacity of the stream and their own resources.- — 4 Am. & Eng. Encyc. of Law, pp. 711 et seq.; Gould on Waters, § 103; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Cotton v. Mississippi & Rum River Boom Co., 19 Minn. 497; White River Log & Booming Co. v. Nelson, 45 Mich. 578; Anderson v. Thunder Bay River Boom Co., 61 Mich. 489; Haines v. Welch, 14 Ore. 319; Hackstack v. Kershena Im. Co., 66 Wis. 439; McKenzie v. Boom Co., 29 Minn. 288; Weaver v. Boom Co., 28 Minn. 534. This is the view taken by the trial court *609as indicated in its rulings upon charges requested by the defendants. Of the instructions refused to them, all but three would have required a verdict for defendants though the jury might be satisfied that they were at fault in unreasonably overtaxing the stream in the floating of timbers and that such fault caused the injuries complained of. Of the rest, charge 1 was the general affirmative charge and was, of course, properly refused. The injuries to plaintiff might in a sense have been caused by the extraordinary flood stage of the river, and yet the wrong of defendants might have so coalesced with that cause as to render them liable. Charge 3 was therefore misleading and properly refused. Charge 6 refused to defendants is covered by the first given charge at their instance. If was for the jury to say whether “the amount of timber floated and boomed in this case was an unreasonable use of the stream.” Charge 7 would have taken this issue from them.

The court was right in declining to go into inquiries as to whether various other tracts of land belonging to divers persons, and located some above the jam and others below the boom, but none having the same relation to either as the land of the plaintiff, “were washed and, if so, the character and extent of the wash.” This line of inquiry would have opened up an unlimited number of issues, collateral to the issue in this case, and the solution of which could have shed only a very dim and uncertain and confusing ray of light on the question before the jury.

Affirmed.