Eeraert v. Eureka Lumber Co., 117 P. 1060

Eeraert v. Eureka Lumber Co.

117 P. 1060 | Mont. | 1911

MR. JUSTICE SMITH

delivered the opinion of the court.

This action was begun to recover damages on account of the fact, as alleged in the complaint, that defendant had so carelessly and negligently driven certain logs down the Tobacco river, in Flathead county, through the lands of the plaintiff, as to damage and destroy such lands, together with certain buildings and personal property situated thereon. Plaintiff had a verdict and judgment for $1,416. Defendant appeals from an order denying a new trial.

1. By original answer, in paragraph 5, defendant admitted driving the logs, but afterward, by amendment, alleged that they were driven by one Wilburn under a contract between them. At the trial paragraph 5 of the original answer was received in evidence, over defendant’s objection. We find no reversible [1] error in this; we regard the whole matter as immaterial in view of the fact that the jury was fully informed as to the contract and the circumstances under which the logs were driven. 2. The contract provided, among other things, as follows: "Wilburn agrees to drive all logs that may be put into the Tobacco river, from a point two miles above the place now occupied by what is known as the Van Wagenen dam, to the mill now *523operated by the company at Eureka. Wilburn further agrees to keep the mill supplied at all times with logs if there shall be a sufficient' amount of logs in the river to do so, or to bring to the mill an amount equal to whatever is put into the river by the •company’s wood crew and their contractor. In case there are too many logs in the river to bring all to the mill, then the company are to accept a solid jam at mill.”

It is contended that Wilburn was an independent contractor, and, therefore, that he alone, and not the defendant, was responsible for the damage caused by the logs. It appears from the testimony that the defendant company placed in the stream about 17,000,000 feet of logs and that these logs were “packed solid” in the river for a distance from eight to twelve miles above its mill. Plaintiff’s property was situated about one and a half miles above the mill. The result of so crowding the river with logs was that they became jammed, and dammed up the stream in places, in consequence of which, when the jams, as the witnesses describe them, were broken, the water came down in suck quantities as to cause a “big flood” and the logs were forced out of the stream over and upon the adjoining lands, including those of the plaintiff. It will be noted that the defendant company [2] had contracted with Wilburn to either bring all logs to the mill or maintain a solid jam there. When Wilburn requested of the president of the company permission to leave the channel open for a short distance in order to prevent flooding the adjacent lands, he met with a refusal. It is apparent, therefore, that it becomes immaterial to inquire whether Wilburn was technically an independent contractor; in a certain sense he was, but the damages sustained by the plaintiff were occasioned, not by any negligence on his part in managing the drive, but by reason of the negligence of the defendant in overloading the stream in order that the logs might be “driven solid”; in other words, by the manner in which the work was necessarily conducted under the contract. There is really no substantial controversy on this point in the testimony. In this view of the case, the authorities cited by the appellant are not in point, as they all relate to specific acts *524of negligence on the part of independent contractors. In arriving at the foregoing conclusion we have assumed — of which assumption defendant cannot complain — that the Tobacco river is a navigable stream. We think the foregoing disposes, in effect, of all other questions raised, save one.

3. Over defendant’s objection the plaintiff was allowed to testify that certain lands, incidentally described in the complaint, but not flooded, had been lessened in value in the sum of two dollars per acre, by reason of the injury to flooded land and the improvements thereon. We think the objection interposed was sufficiently specific to raise the point made by the appellant and that the testimony was erroneously received. The complaint, after describing 160 acres of land of which plaintiff is alleged to be the owner, sets forth: “That the defendant * * * caused # * # a jam of logs to pile up and form a dam, thereby interrupting and obstructing the natural flow of the waters of said stream, and causing the same to overflow its banks, and to cover and inundate and flood the lands of plaintiff herein-before described, and to carry onto and cover the same with large quantities of saw-logs, sand and rubbish and debris; to tear down, wash away, cut out, erode and destroy the natural banks of said stream on the lands of plaintiff; to tear down, uproot and wash away the fruit and ornamental trees and vegetation of plaintiff growing .on said land; to wash away and destroy the habitation, barns and -other buildings of plaintiff on said land; to carry off, wash away and destroy large quantities of vegetables stored on said lands, and large quantities of household goods and furniture and farming implements, machinery and personal property of plaintiff; to wash away and destroy plaintiff’s wagon bridge across said stream on said land; to tear, erode, wash and cut great gullies, ravines, seams and gashes in the soil of plaintiff’s land, and causing the said stream to leave its natural channel, and to cut, tear and wash a new channel across the land of plaintiff, and to render the lands of plaintiff untillable, unproductive and uninhabitable, to destroy the private road of plaintiff across said land, and compelling plaintiff on account thereof, to build a new road at great annoyance, cost and expense.” We find in the *525foregoing no allegation which would tend to notify the defendant [3] that plaintiff would claim damages to lands not flooded, as incidental to those caused to property actually injured or destroyed. Plaintiff’s counsel stated to the court at the time the testimony was offered, that “we,would have to move away from the water.” Such damages are special and should have been pleaded. (O’Brien v. Quinn, 35 Mont. 441, 90 Pac. 166.)

There is no necessity for a retrial of this cause unless respondent so elects. It is ordered that the order appealed from be affirmed, provided plaintiff shall, within ten days after remittitur received in the court below, agree to remit the sum of $300 from the judgment, as of date of its original entry; otherwise a new trial is ordered. Appellant to pay costs.

Mr. Cheep Justice Brantly and Mr. Justice Holloway concur.

Rehearing denied November 3, 1911.