| Mich. | May 10, 1870
Lead Opinion
The only question in this case is whether, under the act of March 20, 1863, {Sess. Laws, p. 874), a plaintiff, who, in floating his logs in a navigable stream, has, for the purpose of clearing the stream from obstructions by jams of defendant’s logs, caused such jams to be broken and the defendant’s logs to be run under the circumstances authorized by the first section of that act, can, without reference to the lien given by that section, sustain an action of assumpsit against such owner personally for the cost and expense
The first section provides that such logs may, under the circumstances there specified, be run, the jams broken, and the banks cleared, “at the cost and expense of the person owning such logs, etc., and such owner shall be liable to such person for such cost and expense.”
If the act had stopped here, an action of assumpsit in our opinion, might be sustained against the owner personally, for such costs and expenses, just as clearly and upon substantially the same principles, as if the plaintiff had done the same work and incurred the same expense “at the special instance and request” of the defendant. Had the work been done and the expenses incurred at the request of the defendant, it would only have created the liability to pay. That liability would, upon the principles of pleading in the action of assumpsit, have been alleged as the foundation of the promise to pay. The statute creates the same liability for the same labor and expense under the specified circumstances. This liability, in both cases alike, creates the legal duty of the defendant to pay. And this duty the law enforces in an action of assumpsit, under the name or theory of a promise to pay; adopting the conclusive presumption that every man promises to pay what it is his legal duty to pay.
Without any aid therefore from any subsequent provision of this statute, the remedy of the plaintiff by a personal action of assumpsit was complete and perfect, unless there is something in the subsequent provisions to modify or limit the effect of that already cited; and we have been able to discover nothing in any part of the act which in any way affects or modifies this provision.
The act, after the provision cited, making the owner liable for such costs and expenses, proceeds, “ and such per
Section three provides for enforcing this lien by an action of assumpsit against the owner, “to determine and satisfy the amount of the lien, and that the property so held may be levied upon and sold, to satisfy any judgment,” in such action, with the cost and expenses of providing for the care and safety of such property.
Section four makes special provision for enforcing the lien by a proceeding against the property, when the owner is unknown or out of the jurisdiction, by petition, publishing notice, ¿so., in which the owner may appear and defend, but if he do not, the petitioners may proceed to trial ex parte. But in this proceeding, as well as in the action where the owner is served, the judgment can only be satisfied “ out of the property covered by the lien.” All of the provisions in the act following that which makes the owner personally liable, are confined to the enforcement of a lien, by action, against the property covered by the lien.
It is plain that cases may frequently occur under this act when the property upon which the plaintiff has been able to secure and retain' a lien, may be quite insufficient to pay such costs and expense. And from the nature of the peculiar risks to which such property and its possession may be exposed, it may not unfrequently happen, that the lien may be lost without the fault of the plaintiff; and if his remedy be confined to the sale of the property upon which he has been able to secure and retain a lien, he must fail to obtain satisfaction, as no special means are provided by the act for enforcing the personal liability of the defendant.
Such a construction completely nullifies the provision
We are satisfied, such was not the intention of the act, but that the provision making the owner liable, was intended to be complete in itself, and enforcible by action independent of the provisions for enforcing a lien; that the provisions for enforcing a lien were intended to give a further and optional remedy.
We do not think it necessary here to analyze the act of March 16, 1861, of which this is an amendment; but a careful examination of that act has confirmed us in the interpretation we have given to this.
The judgment of the Circuit Court must therefore be reversed with costs, and a new trial awarded.
I think the Circuit Court decided correctly, in holding that no action of assumpsit can be maintained under the statute for regulating the running of logs, by any one who has relinquished his lien upon the property which he has once taken into his possession for the purpose of breaking jams and running it.
So far as any mere personal remedy is concerned, it cannot be claimed that an action of assumpsit is any more appropriate or desirable than an action on the case, for the obstruction and nuisance caused by log jams, which result from want of sufficient force to break them. There was no need of legislation for any such purpose, and such is. not the fair inference from legislative action. The real grievance was that the owners were not always accessible or responsible, and provision was needed whereby the property itself, which caused the mischief, could be held to secure
The statute of 1863, under which this action is expressly brought, after declaring that the offending logs may be run at the cost and expense of the owners, and that the owners shall be liable for such cost and expense, proceeds in the same sentence to declare that the person running them shall have a lien, and shall be entitled to retain possession to satisfy his charges, expenses and costs, “ until the same shall be determined, satisfied and paid in the manner hereinafter prescribed.”
After providing that the property may be bonded, the law proceeds to provide how redress shall be had upon the statutory right. It declares that any person, &c., “ claiming any lien as aforesaid,” may bring aii action of assumpsit to determine and satisfy the amount of such lien. This action is to be brought in the county where the property is situated, instead of where one of the parties resides, as in all other cases of assumpsit. And the judgment is to be satisfied by issuing execution against the property. In cases where the owner is not found, proceedings are had by petition and publication, and the property is sold by order, without execution.
These remedies cover all cases where the owner is found or not found, and provide amply for such redress as can be desired against the property. As already suggested, the action on- the case gave a sufficient recourse against the person, when the property was not pursued, and was at least as good a remedy as assumpsit.
There is not the least necessity for straining the statute, in order to secure a personal remedy, and it is certainly an elementary principle that where a statute creates a right and accompanies it with a specific remedy, it excludes other remedies. There never was any common law right resembling those provided for by this statute, and it was not claimed that any such existed. It is very plain that the
Even if the statute had continued as first enacted in 1861, when it was as distinctly provided as now, that the logs should be run at the “ charge and expense of the owners.,” and when the action of debt provided for was nugatory in many respects, it would have been a strained construction to assume that assumpsit would lie. No doubt the Legislature may allow any form of action to be used, whether conformable to common law usage or not, but the common law action cannot lie except where the common law incidents exist. There is no principle which will fit the common law action of assumpsit to a statutory liability raised in invitum, and some other remedy would have been necessary if the statute had not provided any. — Cornyn’s Digest, “Action upon Statute.”— The Legislature has no general power to authorize one person to perform services upon the property of another, or to assume charge of it for his benefit. Such legislation would be clearly invalid. This statute does not attempt to authorize any such unlawful meddling. It is not aimed at all at providing for the management of logs for the especial benefit of their owners. It is designed entirely for the advantage of those who are obstructed by their neighbors. No one can interfere with the logs of others until it becomes necessary for his own safety to do so, and no one can continue to keep up such interference beyond what is necessary to prevent obstructions, and to preserve his lien for expenses necessary to that end. It is merely a right to abate a nuisance, and to retain a lien for reimbursement. The log-owner gets no benefit from it beyond what accrues from the logs themselves, and for this the logs are ample security. If they are not, there is at all events no other lien created on any thing else, and when logs will not pay the expense of running, it
The proceeding is analogous to that for impounding beasts, where the injured party has his option to bring his action for the injury which he sustains, or to distrain. The law provides for ascertaining the amount of damages and expenses; it speaks of it as the amount for which the owner is “ liable ” ( G. L. § 5056) and as “ the sum due from the owner or keeper of the beasts.” ( O. L. § 5057). It provides “ if the sum so found to be due shall not forthwith be paid,” the property may be sold. § 5058. The words importing debt and liability are fully as strong as any in the statute before us, but it has never been supposed that in addition to the statutory remedy, the party could be regarded as entitled, inferentially, by virtue of these clauses, to an action of assumpsit, in lieu of the action of trespass or case, if he should sue directly for the injury, instead of distraining, or should waive a sale.
There is no hardship and no injustice in compelling a plaintiff to elect between his statutory and common law remedies. In the case before us the declaration is framed on the statute, and avers that the plaintiff claims Ms lien. This is a condition of suit. He had in fact, as he concedes, waived his lien. He thereby debarred himself from claiming under the statute, and the Court below in so holding, was sustained by legal principles.
Concurrence Opinion
I concur in the opinion of my brother Christiancy. I am unable to discover any other purpose in some of the provisions of the act of 1863, but to give to a party, where he has been compelled, in order to run his own logs, to run those also belonging to other parties, who have made no provision for that purpose, a personal action for the recovery of the proper compensation. It is true he might