Coe v. Hall

41 Vt. 325 | Vt. | 1868

The opinion of the court was delivered by

PeCK, J.

The grievance complained of in the plaintiff’s declaration, is that the defendant from time to time has driven and floated down Passumpsic River a large number of logs at a single drive over the plaintiff’s mill-dam, thereby creating such force and pressure as to settle and carry away portions of the dam, rendering the plaintiff’s mill of no value, etc. The questions presented arise upon demurrer to the special plea of the defendant.

It is insisted on the part of the defense, that, independent of the special statute of 1852 mentioned in the plea, the only remedy the owner of land, mills and dams has for damage done by floating lumber, is that given by chapter 101 of the General Statutes. But this chapter obviously was not designed to limit the right to recover damages or restrict the remedy to what is there prescribed. The provisions of that chapter relate only to lumber that floats and lodges upon the land or dam, giving the owner of the land or dam a right to retain the lumber, as a security for the damages, if it is not taken away by the owner of the lumber by the first day of May, and providing for the ultimate forfeiture of it in a certain contingency. . The summary mode prescribed for assessing the damages, is for the purpose of enabling the owner of the lumber to redeem it by paying the damages by the time fixed by the statute for such payment to save the forfeiture. This remedy by forfeiture, applying only to cases of lumber lodging and remaining till after the first day of May, can not be construed as limiting the right to recover damages to those particular cases, and it is clear that the case made by the declaration, is not one to which this remedy by forfeiture applies.

But the defense principally relied on, is that set forth in the plea under the special statute of 1852, and the subsequent act extending it, which authorize the defendant to improve the channel of the river by removing obstructions, etc. The plea sets forth the substantial provisions of those statutes, and alleges that under them he made the improvements. The defendant admits in his plea that he has floated down lumber over the plaintiff’s dam, it being within the limits of the grant in that act, and alleges a readiness to pay the damages thereby caused, if any, when assessed by a committee of the county court to be appointed under the second section of said act of 1852. The defendant’s counsel insist that the remedy prescribed in that section, is exclusive, and hence that this action can not be maintained. That provision is, in substance, that all and every injury or damage which may be done by said Hall or his assigns to lands or property of any person in carrying the object of the foregoing section into effect, shall be paid by said Hall or his assigns, and that any person whose property may sustain such injury, may prefer a petition to the county court, and the court may, in their discretion, appoint a committee to view the premises and assess the damages, etc. The provision for recovering damages by petition to the county court, is in terms limited to injury and damage that may be done “ in carrying the object of the foregoing'’’’ [the first] “ section into effectThe first section empowers the defendant to enter upon the bed of the river between certain points specified, and dig, cleanse, and remove all obstructions from, the channel, bars and banks, etc., “ for the purposes of widening, deepening and straightening Passumpsic Diver, and removing obstructions therefrom.” There is no mention made in the first section of floating lumber. The object of the first section is the making of the improvements; and the provision in the second' section for assessing damages done in carrying the object of the first section into effect, applies only to damages done in making the improvements, and not to such damages as may be done in the use of the river in- floating lumber after the improvements are made. This is evident, from the fact that the second section provides for the floating of lumber after the improvements shall have been made, and for the taking of toll by the defendant. It is true the ultimate end to bo accomplished by the whole act, probably was to facilitate the transportation of lumber upon the river; but the particular object of the first section was to provide for the improvements, and in this sense the word object was used in the second section. Had more been intended, a more comprehensive expression would have been used, at least by referring to the object of the whole act, instead of a reference to the object of the first section. Therefore the defendant’s plea can not prevail upon any of the grounds relied on in argument.

We only decide that the plaintiff is not, either by reason of having a remedy under chapter 101 of the General Statutes, or on account of any provision for a different remedy under section 2 of the act of 1852, deprived of maintaining this action. No other questions have been argued. It is true the plea alleges that the defendant did no unnecessary damage, and it is urged by counsel that, on this account, the injury not being willful on the part of the defendant, the plaintiff has his remedy under said chapter 101, and that he was bound to resort to that. We do not decide what the rule of liability should bo in this action, whether absolute, or only on the ground of negligence or imprudence, as the defendant in his plea admits his liability to pay the damages. We find no error in the judgment of the county court adjudging the defendant’s plea insufficient; and upon the pleadings the judgment should be affirmed; but, on the defendant’s motion for liberty to replead, the judgment is reversed pro forma, and case remanded, and the defendant has leave to replead under the general rule as to costs, there being a stipulation to this effect in the exceptions.