Enos v. Hamilton

24 Wis. 658 | Wis. | 1869

Cole, J.

In our opinion there is nothing in chapter 190, Private & Local Laws of 1865, which gives the boom company authority to blockade with their booms the free navigation of Wolf river. That river is a navigable stream, and it would be a very serious question whether the legislature could confer any such power upon the company, even if it had attempted to do so in plain, unequivocal language. But it is very manifest that the charter was not intended to grant any such power. On the contrary, in the first section, which authorizes the company to construct and maintain booms on Wolf river, is this express limitation, that the booms so constructed “ shall in no wise interfere with the free navigation of said river.” If this language in the charter did not place the question beyond all doubt, that the legislature never intended to confer the power upon the company to obstruct by its booms the navigation of the river, the clause in the section in regard to making the cut would. That clause empowers the company ‘‘to make a cut across what is known as ‘Oxbowbend’ on said river, above the village of Northport, in the county of Waupacca, for the free passage of boats, rafts and cribs of all descriptionsand also “to boom the said Wolf river at the head and foot of said cut then follows the proviso containing the general restraining power just cited. So, as if through greater caution, the legislature, in effect, made the right to boom the river at the head and foot of the cut depend upon the fact that the company previously made an artificial channel across “Oxbowbend,” for the accommodation of the public. This alone would show that it was not intended.that the navigation of the river should be obstructed by the booms which the company might build; but the proviso makes the intention perfectly clear.

The proof in the present case shows that the navigation of the river was completely obstructed for more than a month in the summer of 1867, by a boom thrown across the channel just above the village of New London, so that the plaintiff was unable to pass up with his scow to procure bark for his tannery. And there was evidence from which the jury might have found that this obstruction in the river was created by the servants of the defendants, acting according to the orders of the boom-master of the company. Among other instructions, the court was requested to charge the jury, that if they found, from the evidence in the case, that the Wolf river was a navigable stream between the tannery of the plaintiff and the Red Banks, where the plaintiff’s bark was, and that the employees of the defendants, who.had charge of, and were running, logs for them, obstructed the navigation of the river, so as to prevent the plaintiff from passing up the river with bis scow for the purpose of getting such bark and navigating said river, then the plaintiff was entitled to recover, even if such employees put in such obstructions by order of the boom company. It seems to us that this instruction was correct as a proposition of law, and it was entirely pertinent to the facts disclosed upon the trial. For it is very clear, that, if the boom company had no authority, under their charter, to obstruct the navigation of the river, they could not authorize other persons to obstruct it. As was wéU remarked by the counsel for the plaintiff, if the company itself could not do the act complained of, it evidently could not authorize others to do it. It would be merely directing them to do an unlawful act, which direction is no protection whatever to the persons acting unlawfully. Therefore, that the servants of the defendants obstructed the river in the manner they did, by the direction of the boom-master, manifestly is no sufficient warrant or justification.

It is said that if the act of the servants of the defendants was unlawful, they should not be held liable to the plaintiff for the damages occasioned thereby. But the proof is very clear that these servants were in the employment of the defendants, driving their logs down the river. And the rule is too well settled to require the citation of authorities in its support, that the principal is liable to third persons for the misfeasances of his agent in all cases within his employment.

It follows, from these views, that the circuit court erred in giving the instructions asked by the defendants, and in refusing to give the first two instructions asked by the plaintiff.

By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.