43 W. Va. 647 | W. Va. | 1897
D..M. Miller filed in tlie clerk’s office of the Circuit Court of Wood County, on the 24th day of June, 1898, his affidavit for an attachment against, the estate of John A. Hare, on the ground of non-residence of the defendant, claiming that he was justly entitled to receive from the defendant-in the suit which was about to be instituted in the said court the sum of eight hundred dollars, as set out in said affidavit; and at the same timé filed his bond, with security, in the penalty of one thousand six hundred dollars, and caused orders of attachment to be issued from said clerk’s office to the sheriff's of the counties of Wood and Wirt, respectively. The former was levied by the sheriff of Wood County, June 26, 3898, on one barge of ties, containing two thousand ties. The latter was on the same day levied by a constable of Wirt County on one boat load of ties. Defendant afterwards, on the 8th of July, gave bond and took possession of the property so levied upon.
At the July rules plaintiff filed his bill, alleging that he was the owner of a certain boom near the mouth of Hughes river, in Wirt County, W. Va., used for the purpose of catching timber and railroad ties which might, be drifting-in said river; that, said river is one of the large tributaries of the Little Kanawha, and as such a part of the Little Kanawha river; that there was no boom in use for the catching of timber drifting in said Hughes river below the point where plaintiff’s boom was located in said river, and no means, by boom or otherwise, below his boom for the preservation of logs, trees, railroad ties, etc.; that, in the fall of 1892 and the spring of 1893 he caught, in the said boom railroad ties which were drifting in said Hughes river belonging to the defendant, John A. Hare, to the number of nine thousand five hundred ties; that he preserved said ties in said boom, and notified the defendant, John A. Hare, that his ties had been caught, and demanded from him payment of the compensation prescribed by statute in relation to drift. proi>erty, and that defendant wholly refused to pay plaintiff the amount which he was entitled to for catching and preserving them; that he is entitled to receive from the said Hare the sum of six cents for each and every tie caught and preserved by him; that the defendant had recently taken possession of his said
Defendant filed a general demurrer to the bill, and, without waiving his demurrer, filed his answer, denying that the Hughes river is any part of the Little Kanawha river, and averring that it is a separate and distinct river, and so recognized in the history and geographical surveys and delineations on the maps of the State of West Virginia, etc.; and admitting the truth of the allegation that in the fall of 1892 and spring of 1898 there, was no boom in use for the catching of timber drifting in said Hughes river below the point where the plaintiff retained the respondent’s railroad ties in said Hughes river; and charging that, no boom could be maintained in said Hughes river during the years 1892 and 1898, at any point, m said Hughes river, or in said Little Kanawha river, because the same was not allowed by the laws of the State of West Virginia; and
On the 29th of August, 1895, the cause was heard upon process executed, affidavit and attachment issued and levied, upon the hill filed, and proceedings had at rules, the demurrer and answer of defendant, general replication to the answer, the issue on demurrer, and the depositions of all the witnesses, taken both for plaintiff and defendant; whereupon the court overruled the demurrer, and found that the plaintiff was entitled to a reasonable compensation for catching and preserving defendant’s ties, and sustained the attachment issued in the cause, but held that, before a final decree could be executed in the cause, it should be referred to one of the commissioners of the court to take, state, and report an account between the plaintiff and defendant. The cause was accordingly referred to W. W. Jackson, commissioner, with directions, after first giving reasonable notice to the parties, to make, state, and report an account between plaintiff and defendant, as follows: “First, as to the amount the defendant is indebted to the plaintiff on account of the lines or ropes mentioned in the bill, alleged to have been purchased by the plaintiff for the use of the defendant, the plaintiff and the Parkers-burg Mill Company, if any, the costs of said ropes, and the amount to be charged to the defendant; second, the'number of railroad ties, belonging to the defendant, collected in plaintiff’s boom and received by the defendant, and what would be a just compensation for catching and preserving said railroad ties, and the amount to which the plaintiff* would be entitled for such service; third, the amount of payments or offsets to which the defendant may be entitled, under the pleadings in this cause, if any.”
On the 19th of November, 1895, Commissioner Jackson filed his report in the cause, in substance as follows : “Your commissioner reports that the evidence submitted to him by plaintiff and defendant was very conflicting, and that a
The defendant, John A. Hare, excepted to the report: “First, because the same is not supported by the evidence before the commissioner and before the court; second, because said report is contrary to the evidence in the cause before said commissioner; third, because the commissioner has erred in allowing the plaintiff, D. M. Miller, $230 for rope, when the evidence shows that no rope was ever delivered to the defendant, nor was any ever delivered at any place agreed upon between the plaintiff and defendant . for delivery; fourth, because the commissioner erred in allowing the plaintiff two and a half cents (2-¡-) per tie as just compensation for catching and preserving railroad ties in controversy, making a total of $270.50 due from the defendant to the plaintiff on account of catching and preserving such railroad ties, and because plaintiff is not entitled to recover anything, as set, up in the answer filed in this cause, and said finding is contrary to the weight of evidence; and, fifth, because of errors and insufficiencies appearing upon the face of said report.”
And on the 2d of December, 1895, the cause was heard upon the papers formerly read, and the orders made therein, upon the order of reference and report of Commissioner Jackson made thereunder, and the exceptions
The first, assignment of error is the overruling of the demurrer to plaintiff’s bill. The demurrer filed is a general demurrer to the whole bill, and sets out no grounds other than that “the same is not sufficient in law.” The bill alleges indebtedness of the defendant to the plaintiff in the sum of two hundred and thirty dollars for rope sold by plaintiff to defendant and furnished to him, and also in the sum of five hundred and seventy dollars for catching and ijreservmg certain ties of and for the defendant. In his brief the counsel for defendant argues that the demurrer should have been sustained by reason of the plain and willful violation of the statute law of the State of West Virginia in maintaining. a boom on a navigable stream by the plaintiff, where no such boom was permitted under the law, in which boom defendant’s ties were unlawfully caught, and for which plaintiff has charged defendant, and seeks to recover from him such charges in this suit. The reasons assigned for sustaining the demurrer do not apply to the whole bill. The demurrer is too extensive, and was properly overruled.
Second, that the court erred in overruling the exceptions to the report of Commissioner W. W. Jackson in the cause, certified as of September 28, 1895, because the same is not supported by the evidence before the commissioner and before the court, and for other reasons set forth in the exceptions to said report, filed by John A. Hare, by his attorney, L. N. Tavener. A careful examination of the evidence shows that the third exception to Commissioner Jackson’s report is well taken, as to the allowance to plaintiff, Miller, of two liuudred and thirty dollars for rope. This allowance should have been seventy-seven dollars, and not two hundred and thirty dollars. Defend
Third assignment: “The court erred in confirming the said commissioner’s report, and decreeing against the appellant, John A. Hare, the sum of $472.21, with interest and costs of suit.” This is correct to the extent of the difference between two hundred and thirty dollars allowed in the report for rope, and seventy-seven dollars, the amount which should have been allowed.
Fourth assignment: “The court erred in not dismissing the plaintiff’s bill after the proofs were in, showing that
Defendant, Hare, in his testimony, says that “in January, 1898, the river broke up, and the ice destroyed Mr. Miller’s shear boom, and a portion of iny side boom, and I took my shear boom and what side boom I had and coupled it onto his [Miller’s], and we used the boom jointly for a short time for catching our ties”; that Mr. Miller rebuilt- his shear boom, and witness Hare then moved his back to the place where he formerly had it; as he expressed it; “that is, what I had left of it,” “about a mile, or a mile and a half, or something like that, above Mr. Miller’s.” The “wildrise,” as witness Hare designated it, came in April, .1898, when plaintiff caught most of the ties of defendant, Hare, for which he has charged him in this suit. From Hare’s testimony it appears that several thousand ties on this rise passed out into the Little Kana-wha river, and Hare himself says that his recollection is that it cost eleven cents per tie to have such ties gathered up and delivered in boat. Several witnesses were exam
The decree is affirmed as to the amount allowed for catching and preserving the ties, and is reversed as to amount found for rope, which should be seventy-seven dollars; and, this Court proceeding to render such decree as the circuit court should have rendered, it is adjudged, ordered and decreed that plaintiff recover against the defendant the sum of three hundred and seventeen dollars and thirty cents, with legal interest thereon from December 2, 1895, until paid, and his costs by him expended about his suit in the circuit court, including fifteen dollars as allowed by law, and that he have execution therefor.
Reversed in part and decree entered.