111 Me. 566 | Me. | 1914
This is an action on the case in which the plaintiff town seeks to recover damages of the defendant for wilfully, negligently and wrongfully damaging a bridge, by using dynamite or other explosives in such close proximity to the abutment of the bridge as to tear it apart and damage it, thereby rendering the superstructure unsafe and dangerous for public travel, so that they were obliged to close the bridge and repair it at a large expense. At the trial of the case it was admitted that the bridge w?is a part of the highway crossing Cathance stream in Marion. By the exceptions it appears that the stream was “a floatable highway, and has been used by the public from time immemorial for the purpose of floating logs and timber from the forests to the mills; that the defendant at the time- of the alleged wrongful act was engaged with his crew in the performance of his contract to drive approximately 1,100,000
The declaration does not allege nor is it anywhere contended that the defendant, in the use which he made of dynamite, had any intention of disturbing any part of the bridge, simply because it was a public nuisance. The exceptions show that “there was no evidence that defendant, his servants or agents, placed or exploded any dynamite or other explosive substance under the abutment; nor was there any evidence that the defendant, his servants or agents, did any act with the direct purpose or intention of injuring the bridge or abutments.”
The case comes up on motion and exceptions, but the motion is withdrawn. It seems to have been conceded, if this bridge was. an obstruction to public navigation so that it'impeded the passage of the defendants logs, it was a public nuisance. The court in its treatment of the case seems to have assumed that the bridge was a public nuisance, and to have based his rulings upon the theory, that the plaintiff, in the use of dynamite to extricate his logs from the bridge, was undertaking to abate a public nuisance; and acted upon the assumption, if it was a public nuisance, and the defendant’s logs were impeded in their progress by it, that the defendant, although in the exercise of due care in the process of removing his logs, would be responsible for any injury to the abutment, in so doing. That this was the theory of the ruling will appear from the following testimony and colloquy: John A. Robinson, called by defendant, was asked on direct examination: Q. When a log was under water what did you do ? A. If the log was under water we
We do not understand this to be the law. Upon the assumption that the bridge was a nuisance, which the jury might have found if the question had been open to them, it was the undoubted right of the defendant to do whatever was reasonable and necessary, to remove so much of the structure as deprived him of the lawful use of the stream for driving his logs. This rule is founded not only upon authority, but necessity. ' In the case at bar the defendant was driving down this floatable river, a legal highway for the passage of all lawful traffic, more than a million feet of logs, worth from ten to twenty thousand dollars. It is common knowledge that the driving pitch of water at best is short, and at times very limited. It is equally well known, if a drive of logs is stalled and has to lie over for a season, there is a great depreciation of value. Accordingly, unless the defendant was permitted to interfere with this nuisance in his path, to the necessary extent of making a passageway, his whole drive might have been held up on the river for a year. Resort to the courts for the abatement of such a nuisance would be entirely inefficient and futile. And the law does not require it.
The plaintiffs, however, contend that the bridge having been located by municipal authority is a legal structure, and, if a common nuisance, cannot be abated by a private individual, and cites State v. Leighton, 83 Maine, 419, as authority for this doctrine. The brief interprets the opinion in this language: “A lawful structure, though a public nuisance, cannot be removed, or the public nuisance abated by one whose individual rights are affected thereby.” This statement is inconsistent with itself. A lawful structure is not a common nuisance. In other words, a common nuisance is not lawful. Nor does this case hold or intimate that the bridge destroyed by the defendant was a common nuisance. The decision is based solely upon the ground that the bridge was authorized to be built over tide waters, not under the general powers of municipal officers to lay out highways, but by an act of the Legislature giving specific
Upon this theory of the law that a town has no right to create a nuisance, the principle laid down in Brown v. Perkins et al., 12 Gray, 89, must control this class of cases. Shaw, C. J., clearly states the rule as follows: “The true theory of abatement of nuisance is that an individual citizen may abate a private nuisance injurious to him, when he could also bring an action; and also,
Upon authority as well as reason the defendant had a right to interfere with the bridge to the extent of removing so much of it as became a nuisance in the path of his logs in their course down the stream.
But in doing this it was incumbent upon the defendant to do'as little damage as was consistent with the accomplishment of his purpose. Accordingly, the defense offered, tending to show due care on the part of the defendant, in extricating his.logs from the abutment, was admissible, and the ruling excluding it, erroneous. It was the duty of the defendant, in pursuing the lawful right of passage through this bridge, to do only what was reasonable and necessary to attain his end. He was bound to act within the standard of due care. He could not wantonly and wilfully do damage that was unnecessary. The last paragraph of Corthell v. Corthell, 88 Maine, supra, confirms this view. It says: “The defendant’s plea avers that he removed the incumbrances placed in the way by the plaintiff, with due care and without damage more than was necessary to secure the passage for himself and his teams, agents, and servants over the same.” All this is admitted by the demurrer, and is a good defense.
Exceptions sustained.