Action for damages done to a brail of logs belonging to plaintiff, moored at the shore of the Mississippi river, by a raft of logs which defendants, by means of a steamboat, were floating down the river, and which ran into and broke up the brail. The case comes here on a bill of exceptions, presenting a great many exceptions, and .a great many points are made on them here. They can all be disposed of, however, by a comparatively few propositions, without going over them all in detail.
It appears that plaintiff, who was a manufacturer of lumber at the city of Winona, floated the brail down the river, to a point about three miles above his mill at Winona, where he made it fast to the bank of the river, and left it there, intending to permit it to remain until he should sell it, or wish to manufacture it into lumber at his mill, and that it remained there ten days before it was struck by defendants’ raft. There was a general verdict for plaintiff, and, in answer to special interrogatories, the jury found that there was no want of ordinary care on the part of plaintiff in leaving the brail where it lay, under the circumstances disclosed by the evidence, and that the brail lay partly in the channel of the river. How much it lay in the channel, whether enough to be an obstruction to navigation, was not found, nor is it disclosed by the statement of what the evidence was.
Upon this state of the case the defendants insist that
The Mississippi river is a public highway for the purposes of navigation by whatever the interests of commerce, and the wants of the people in the territory through which it passes, require should be floated on its surface-. The right to navigate it applies as well to rafts of logs as to vessels, and covers the entire navigable part of it. Whoever unnecessarily obstructs passage along it is guilty of a- nuisance. But the right of navigation includes, as incidental to its beneficial enjoyment, the right, in a reasonable manner, and for reasonable periods, to stop and occupy, to the exclusion of others, particular parts of or locations in the river. Thus, vessels have not merely the right of passage, but the right to land and remain at the shore- such times, and in such places, as may be reasonably necessary • for loading, unloading, and awaiting loads, and, of course, during such times they must obstruct the passage of other vessels over the part of the river so occupied.
The right of navigation is subservient to- the- interests of commerce, and such navigation may, and indeed must, be
The charge as to the effect of negligence on the part of plaintiff was correct. The rule laid clown (and it ivas even more favorable to the defendants than that stated in their request) was that, if plaintiff was guilty of any negligence that brought the damage upon him, he could not recover.
The exceptions to the refusal of the court to give the requests of defendants, defining what would be negligence on their part, are unfounded. Those requests, numbered two and eight in the bill of exceptions, assume that the duty, on the part of defendants, to exercise care, attached only after they saw the brail. The court stated the rule to be that they should have exercised due diligence, not only to avoid a collision after they saw the brail, but to see it in time. This was correct, and covered the entire question of defendants’ duty in the premises.
Several of their requests, especially those marked, in the
Exception was taken to a charge of the court that it was lawful for parties to raft logs with a steamboat, “ and, in case of this accident, if the steamboat was defective in not having sufficient power to control a raft and its momentum, which the boat undertook to do, and if the accident occurred by that excess of motion which they had no power to control, then, if that excess of motion, created in this way by the boat, caused the damage, the defendants would be liable.’’ In connection with the charge as to the effect, on the right of recovery, of negligence on the part of plaintiff, the proposition is correct. It is not liable to the objection made that it ignores the existence, in the case, of undisputed facts. The evidence as to the power or capacity of the steamboat to control the raft which it was propelling is not in the bill of exceptions, nor does it appear to have been established that it was impossible to control a raft in its approach to the point where the brail lay, however it may have been at that precise point. It would certainly be negligence in a party to propel a raft on the river by means which would communicate to it such motion as would be beyond his power to control. No one has a right to navigate the river with machinery so defective, insufficient, or inadequate as to be beyond his control.
Evidence was admitted, against defendants’ objection, as to the custom of lumbermen and pilots with reference to tying up rafts along the river, and also witnesses were
The question to the witness Kerza, on cross-examination, assumes as a fact that the plaintiff’s brail was “right in the channel of the river,” or, as we understand it, wholly in the channel. The jury found that such was not the fact. The exclusion of an opinion upon a state of facts which the jury have found do not exist in the case ■could not prejudice.
Order affirmed.