2 Nev. 249 | Nev. | 1866
Lead Opinion
Opinion by
On the twenty-eighth day of November, a.d. 1861, the Legislar ture of the Territory of Nevada passed an Act entitled “ An Act for the improvement of the east branch of Carson River,” by which C. II. Hobbs, J. C. Russell, David Smith, and J. L. Rennall were authorized and empowered so to improve the east branch of the Carson River from where it crosses the boundary line between California and Nevada Territory to the junction of the same with its west branch, and thence the main channel to the town of Empire City in Ormsby County, by removing logs, rocks, opening sloughs, and cleaning out other natural obstructions from it so as to make it suitable for the purpose of rafting down logs and timber to the town of Empire City. The second section of the act declares that “ the said C. H. Hobbs, J. C. Russell, David Smith, and J. L. Rennell, or their assigns, on compliance with the provisions of the first section of this act, shall have the exclusive right to the use of said river, within the points named in said first section, for the purpose of floating down logs and timber of all kinds for the period of five years, commencing on the first day of March, a.d. 1862; at the expiration of which time said river, together with all improvements made for the navigation thereof, shall be free for and open to the people of Nevada Territory.” The sixth section makes it the duty of the franchisees to construct such chutes and aprons over all dams which were erected at the time of the passage of the act
In the month of May, 1863, two of the Commissioners, A. W. Pray and John H. Atchison, made the following report, in accordance with the requirements of the Legislature: “ We, the undersigned, appointed a Board of Commissioners by Section seven of an act entitled ‘An Act for the improvement of the east branch of Carson River,’ approved November 28th, 1861, respectfully report that we have examined the chutes, booms, and aprons in said river, in pursuance of the duties prescribed and imposed upon us by said act, and ive do hereby certify and declare said chutes, booms, and aprons in said river to be safe to float and raft logs and timbers without damage to the dams below thereon, unless the said river should rise to an extraordinary height and overflow its banks.”
On the twenty-fourth of February, a.d. 1863, the franchisees formed a corporation, and adopted the name “ Carson River Lumbering Company.”
After the plaintiff had improved the river by the construction of chutes, aprons, and booms, and the removal of obstructions from the channel, the defendants who had organized an association styled the “ Carson River Wood Company,” placed in and floated down the stream, at different times, about eight thousand nine hundred cords of ’wood,' and used the plaintiff’s improvements, as it is claimed, in so doing. Upon these facts, the plaintiff brings an action of assumpsit to recover the sum of eight thousand nine hundred dollars, which, he alleges, is a reasonable compensation for the use of the river and the improvements placed thereon by it, and that the
The weight of evidence is decidedly against the_ plaintiff upon that point.
That is, however, a question not necessary to be determined on this appeal, as the judgment must be reversed upon an error committed by the Court in refusing to give certain instructions asked by the defendants, and in giving others at the request of plaintiff. Counsel for plaintiff and the Court bélow seem to have acted upon the assumption that it was unnecessary for plaintiff to establish a promise or undertaking by the defendant, but that the law would raise an implied promise from the use of the river and improvements by the defendants. The jury were therefore instructed that “ if they believed that no special agreement existed between the plaintiff and defendant to pay the plaintiff for the use of the franchise and improvements, but believed that the defendants made use of the same in the years 1864 or 1865, or both, then they should find for the plaintiff in such sum for each year as, in their estimation from the evidence before them, would be a fair compensation for the use thereof;” and the Court refused to give the following instructions asked by the defendants: “ No right to charge for the use of the river or improvements is expressly granted by the Acts of the Legislature put in evidence by the plaintiff; no such right can be implied, and no implied contract can be raised from such use; therefore, in this form of action, the plaintiff cannot recover.”
We are clearly of opinion that the Judge below erred in charging the jury as stated above, and in refusing to give the foregoing instruction at the request of the defendants. It is quite evident that if the defendants used the river and plaintiff’s improvements without its permission or assent, it committed a trespass; and if the plaintiff cannot waive such trespass, and sustain an action of assumpsit for the use of the river and improvements, it cannot recover in this form of action. It is assumed, in the instruction given
The old rule was, that what was a tort in its inception could not by any subsequent transaction be made the foundation of an implied assumpsit. And though this rule has in some peculiar classes of cases been relaxed, it is still the general rule. In most actions of trespass nothing could be more repugnant to the real facts than an implication of a promise on the part of the tortfeasor; and it would often be in direct conflict with his express declarations. None will claim that the law would raise an implied promise to pay rent by one who takes possession of and holds lands or tenements by force and under a claim of right in himself, nor that the law will raise an implied promise to pay a certain sum of money as damages for an assault and battery. To justify a recovery upon an implied assumpsit, it is necessary for the plaintiff to establish facts from which a promise upon the part of the defendant to pay a certain sum of money can reasonably be presumed. But no such promise can possibly be presumed where the act constituting the cause of action is done in defiance of plaintiff’s rights, or under a claim of adverse right.
This question has, however, been fully settled by the Courts, and is no longer res integra. It has been frequently held that an action of assumpsit founded upon a tort, can only be maintained in cases where personal property is unlawfully taken and sold by the tortfeasor. In such case the owner of the property may waive the tort, affirm the sale, and have an action for money had and received for the proceeds. There is also another class of cases where assumpsit will lie to recover damages growing out of a tort, and that is where the action is brought against the executor or administrator of the wrongdoer. The Courts have allowed assumpsit in this latter class of ■ cases simply because trespass will not lie, the tort being extinguished with the death of the wrongdoer. If assumpsit were not maintainable, there would be a failure of justice. These two classes of cases are, however, the only exceptions which we have been able to find to the general rule. In the case of Jones v. Hoar, 5 Pickering, 285, the Court say: “ The plaintiff declares in assumpsit, and one count is for goods sold and delivered.
" But thus far, I will say, that it does appear to me monstrous to carry the causes to any such extent as that which has been contended for, and that they do not warrant the conclusion which has been drawn from them. * * * I.do not find that the Judges in any of the cases have gone so far as to hold that a tort may be converted into a contract. * * * All that is to be collected from the cases is this, that if the goods be converted into money, the Court will allow the plaintiff to waive the tort, and bring an action in which he can, recover nothing more than the sum actually received.”
These authorities are directly opposed to the instructions given to the jury at the request of the plaintiff, for if the tort cannot be waived and assumpsit maintained, there is no implied promise
We do not think such indulgence can possibly be extended to litigants under any system of practice.
Though we consider it entirely unnecessary to discuss at length the question of the validity of the Act of the Legislature granting the franchise to the plaintiff, and the question of whether the condition upon Avhich it was granted was complied with, yet it may be well to say in brief, that we are clearly of opinion that the legislative Act is valid, and that the condition was fully performed.
The judgment below must be reversed, and it is so ordered.
Rehearing
RESPONSE TO PETITION EOR RE-HEARING.
Opinion by
Every point made in the petition for re-hearing in this case was thoroughly considered in our first opinion, and no authorities are cited which in any way conflict with the conclusions of the Court in that opinion; and as we are fully satisfied that the law is correctly enunciated therein, we do not feel disposed to grant a re-hearing of the argument. The general rule of law unquestionably is, that what is once a tort cannot by any subsequent transaction be made the foundation of an implied assumpsit. There are exceptions to this rule, some of which we referred to in the original opinion, but this case does not come within any of the exceptions.
There is no doubt but the plaintiff has a right to a retrial of the issue upon the pleadings as they stand. The judgment was reversed upon an erroneous instruction given by the Court below, and we can see no reason why plaintiff should not go to trial on its present complaint, if counsel are satisfied that a contract or promise on the part of the defendants can be proven. The former judgment of this Court must stand, and a new trial is awarded.