Miller v. Sherry

65 Wis. 129 | Wis. | 1886

Lyon, J.

The learned circuit judge held, in effect, that the flooding of the river below with the waters accumulated in the flooding pond, in aid of the navigation of Red river, was a lawful use of that stream; but that the right of the defendant so to use it is not paramount to the plaintiff’s right to maintain his dam and use the stream for propelling his saw-mill. In other words, he held that the rights of a navigator of the river who maintains an improvement thereon in aid of navigation, and of a riparian owner who utilizes the stream for other purposes, are equal, and that both are to be protected in the reasonable use of the stream for their respective purposes.

We shall not determine here whether.this is a correct legal proposition; for, whether it is so or not, it is certainly as favorable to the plaintiff as the law will admit. If the right of the plaintiff to maintain a dam upon the stream to raise a head of water to propel his saw-mill be conceded as equal to the right of the defendant to float his logs down the stream (incidental to which is the right, at proper times, reasonably to increase the volume of water in the stream by artificial means), the plaintiff cannot lawfully ask for any further or greater concession. On this basis, if the negligence of the defendant’s servants was the sole cause of the jam of logs which caused the disaster to plaintiff’s property, the defendant would he liable for the damages thereto. This is clear. It is equally clear that if the dam and sheer booms of plaintiff were so defectively constructed and maintained that the danger of a jam of logs at the chute and the breaking of the dam was thereby increased, and that the faulty construction of such dam and booms directly contributed to the breaking of the plaintiff’s dam and the consequent injury, the plaintiff cannot recover.

The jury found that the sheer booms were insufficiently constructed, located, and fastened to render the passage of logs through the chute practically safe and certain; that the dam was insufficient to bear the strain of ordinary spring freshets; that the plaintiff’s structures were a hindrance to the navigation of the river; and that there was- no practical difficulty in so constructing the sheer booms as to make such passage of logs practically safe. If these findings are upheld, the defendant cannot properly be held liable in this action, for the proofs show that such faulty construction of the sheer booms contributed directly to the injury of which the plaintiff complains. There is a finding to the effect that the plaintiff was hot guilty “of a want of ordinary care in building, equipping, booming, or managing his mill and mill-dam, that contributed to the happening of the injury complained of.” If this finding extends to the sheer booms, it is unsupported by the testimony, which is almost or quite conclusive that they were negligently and insufficiently constructed, and that such faulty construction contributed largely to cause the jam of logs and the injuries complained of. To that extent, therefore, the finding should be disregarded.

Our conclusion is that judgment for the defendant should have, been rendered on the special verdict.

Counsel for both parties ably argued the question of the relative rights of navigators and riparian owners to the use of - small streams which, although navigable in fact, are not meandered or specially declared navigable by law, and Avhether as to such streams tbe rules are applicable wbicli prevail if the stream is meandered or has been so declared navigable. "We do not reach that question here, and do not determine it.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to give judgment for the defendant.