51 W. Va. 445 | W. Va. | 1902
Lead Opinion
Roman Pickens obtained a judgment in the circuit court of Kanawha County on the 24th day of April, 1900, against the Coal River Boom and Timber 'Company for the sum of twelve thousand one hundred and ninety dollars. Tbe defendant being dissatisfied therewith assigns numerous reasons why the same is erroneous.
The first is the overruling of the demurrer to the declaration and each count thereof. The first and third counts charge the defendant with the erection of a boom in Coal river below the plaintiff’s mill thereby obstructing the water in such manner as to cause a deposit of sand in the bed of the stream below and
The second count charges the construction and maintenance of the boom in such negligent, unskillful and unlawful manner that the plaintiff’s natural fall and milling property were dam
From these authorities it is plain that if defendant’s boom is so located and constructed as to cause the deposit of sand and debris and temporarily injure plaintiff’s natural fall or prior artificial dam, such location and construction are unlawful and wrongful in so far as plaintiff’s private rights are concerned and defendant must answer to him for the damages occasioned thereby.
While the count is so framed as to cover permanent damages, yet from the nature of the wrong it is evident that the plaintiff may only recover temporary damages. The boom is not a permanent structure as compared with plaintiff’s water power. It is temporary and movable. After it ceases to be useful from the exhaustion of the timber on the waters of the stream it will be removed or abandoned and it is liable at any time to be washed out by the force and effect of repeated floods. A permanent structure is one that is to continue for all time excdpt for some, unforeseen event, while a temporary structure is one erected for a known temporary and limited business. This boom was never intended to be permanent. Yet this suit is not for the wrongful construction of the boom but it is for the wrongful deposit of sand resulting from the wrongful location and construction of the boom. A different kind of boom or a boom on a different location would not have so affected the deposit of sand. An act in itself perfectly lawful becomes unlawful from its effects on the rights of others. Tinsman v. Belvidere, etc., R. R. Co., 69 Am. Dec. 571, cited before, 2 Dutcher (N. J.) 148. The deposit of sand is a nuisance to plaintiff’s property not of a permanent nature, for their is nothing more shifting than sand, especially when under the influence of moving waters. Tf the boom caused the deposit its removal, reformation or destruction will entirely remove the holding back force and the unrestrained waters will soon reduce the river bed to its natural level. The giving of permanent damages to the full extent claimed in the declaration would bo equivalent to a transfer of plaintiff’s water power to the defendant. This plaintiff cannot demand for defendant has the
This virtually disposes of the instructions, and renders it unnecessary to copy and comment on them separately here.
Instruction No. 1 given for the plaintiff is misleading in that it tells the jury if the nuisance caused by the defendant “reduced the height of his natural fall, he is entitled to recover such damages as he may have sustained by reason of the said natural reduction of said fall.” This would lead the jury to infer that plaintiff was entitled to recover permanent damages and without regard to the statute of limitations pleaded. As heretofore shown, all he can recover is the damages' occasioned by the loss of the use of his water power for five years previous to the bringing of. his action. Ward v. Ward, 47 W. Va. 766; McCreery’s Adm’r. v. Railroad Co., 27 S. E. 327. Instruction No. 2 is not erroneous in that it endeavors to establish a mill right by pre
Instruction No. 3 is not bad because it advises the jury that plaintiff was entitled to the use of both his artificial dam and natural fall as against the defendant’s right to erect a boom below the same. The same cause that destroyed the power of the fall also rendered the dam useless. Without the fall the dam would have been of no value. These two last being merely general instructions to find for the plaintiff presumtively relate to the condition of affairs at the time of the institution of the suit, and it was unnecessary to limit the time to the period free from the statute of limitations. Instruction No. 4 is misleading and should not have been given. The true measure of plaintiff’s damages is the loss he sustained by reason of his not having the use, during preceding five years, prior to the bringing of this suit, of his mill free from the alleged nuisance thereto. If this loss was total then the loss of profits or the rental of the property is the true measure of damages. If not total, then the comparative loss of rents or profits is the measure of damages. The elements of loss in case of a removable nuisance is usually measured by the rental value of the property. 3 Sedgwick on Damages, s. 94-8, p. 64. The measure of damages for the interruption of the natural flow of a stream which prevents the running of a mill is what the mill would have been worth during such deprivation of its use if such deprivation had not taken place. That is its rental or profitable value. Wooden v. Wentworth, 57 Mich. 278. The first section of the instruction seems to authorize the jury to take into consideration the permanent value of the mill as though it were affected by a permanent nuisance. If such damages were allowed it would authorize the continuance of the nuisance for all time. The second section of the instruction is in accord with the law. The third section contains the same fault as the first, as it allows permanent damages whereas the plaintiff can only recover for the temporary non-use of his property occasioned by de
This also disposes of the instructions asked by the defendant and refused by the court except the 10th and 12th, which relate to the non-liability of the defendant by reason of its having five years prior to the institution of this suit leased the boom to the Coal River Boom and Driving Company. While the boom is under lease, it is still the property of the defendant, and was located and constructed by it to be used in the manner the lessees are using it, to-wit: For the purpose of catching and storing logs, and while the lessees may be equally guilty with the lessors in maintaining an unlawful nuisance as to plaintiffs property, yet the lessors still own it, authorize the use and derive a profit therefrom. The original erector of a nuisance or that which creates a nuisance cannot escape responsibility by conveying the premises away, much less by leasing them. Plummer v. Harper, 3 N. H. 88 (14 Am. Dec., note, 336).
The defendant' took a large number of exceptions to questions and answers none of which appear to be important or sufficient to reverse this case had. it been properly tried as to the true measure of damages, and it is useless unnecessary work to cumber the record with them.
• For the error committed by the circuit court in giving the erroneous instructions asked by plaintiff the judgment is reversed, the verdict of the jury set aside, a new trial awarded, and case remanded
Reversed.
Dissenting Opinion
(dissenting):
The Legislature by giving a court power to grant a mill-dam right vests property in the mill-owner, which can not be taken away with out compensation, because the Legislature may grant a right impairing public right of navigation. Crenshaw v. Slate River Co., 6 Rand. 245; Monongahela Nav. Co. v. United States, 148 U. S. 312; Angell on Water Courses, s. 562. But as far back as the act of March 2, 1819, statute law provided, and does yet, that a mill-dam, though built under grant of a court, if obseructive of navigation, is a public nuisance, and navigation has preference over such franchise. 2 Rev. Code 1819, p. 225; Code 1849, p. 326, ss. 3, 5, 6, 7; Code 1899, ch. 44, ss. 24, 26, 27, 28. Hence by reason of this legislation a mill-dam grant gives a right, subject to every just right of navigation by an individual, subject to the right of the state, or any company holding its franchise, to erect works to improve or utilize navigation. There would exist in mill-owners no right to damage agaiiist any person or corporation using a stream in a proper manner; but for damage from the exercise of this franchise in a wanton or careless manner, the mill-owner has an action. Gaston v. Mace, 33 W. Va. 14. This action for negligence remains to the mill-owner against a corporation. It would exist under the Boom act if s. 28 were not in it. Thus it seems that it is not this action for negligence that is saved by section 28, as it would exist without that section. If must be some other action that is saved. What one ? That which but for the section would not exist; that is, an action by mill-owner or persons injured by the operations of the boom company with negligence. As the statutes cited give preference to navigation over the mill right, a boom company would not be liable for injury to the
I am reluctant to so construe this boom act, giving powers to a corporation operating for its own gain so great, as to place all mill owners and land owners at its mercy, without remedy for injury, unless misuse, negligence, can be shown. Say that the Legislature, under the reserved preference for navigation, could vest a company with immunity from such liability, my position is.that it has not chosen to do so; it has not chosen to outlaw all people living along a stream so useful to its citizens by using this navigation preference vested in it for their great damage. It has manifested the contrary by section 28, reserving them action for self defence. Did it mean this? Ought it not be liberally construed for their protection? Intended to save rights, should it be frittered away by a narrow construction so as to save only what was already saved without it? The law being that when a company has a charter to carry on a work, it is not liable, unless guilty of negligence, this section was in
Does it so dam and obstruct the water as to injure the health of those along its banks, or render it unfit for stock or otherwise ? If so, the company is liable. Therefore, I do not think any of the counts for want of charge of negligence bad. True, technical pleading requires an averment of wrongful action, but it docs seem to me that as we take judicial notice of section 28, by the averment that defendants’ boom damaged plaintiff, a cause of action is shown. From this view, it follows that the liability does not depend upon the chance or ca-pricious ground of the boom being placed here or there, near to or remote from the mill. It may be placed anywhere without its .entailing negligence from choice of location, for it carries liability wherever placed if damage ensue. I think Judge DbNt’s opinion unsatisfactory in the fact that it infers negligence from the mere occurrence of damage, which, on principle, cannot be..
What I have said above is predicated upon concession of power in the state to grant boom rights regardless of mill owners, but leaving them remediless for any damage from the necessary and proper operation of a boom. I do not discuss this matter. Many authorities say that in improving navigation a riparian owner’s rights of property cannot be impaired without compensation, others that whatever is necessary to navigation may be done without pay. Monongahela Nav. Co. v. United States, 148 U. S. 341; Yates v. Milwaukee, 10 Wall. 497; Moore v. Veazie, 32 Me. 343. I have no idea that the state can enable any corporation to injure a riparian owner’s land outside the stream. Rogers v. Boom Co., supra; Weaver v. M. & R. Boom Co., 28 Minn. 534. It is claimed by counsel for Pickens that he has a vested property in the fall of the water in Coal river, and doubtless has for all purposes of use as a riparian owner. Gould on Waters, s. 204. He says he cannot be compelled to yield it without pay. C. B. & Q. R. R. v. Chicago, 166 U. S. 226; Monongahela Co. v. United States, 148 U. S. 312.
Here intervenes the reservation made by statute as to mill dams. But as this right is inseparably connected with the stream, I have never been able to separate the right to such
I cannot agree to set aside the verdict because it gives prospective damages as for original and permanent injury. While the declaration goes for such damages, yet it is clear that if the nature of the injury is not permanent, impermanent damages may be given, and we cannot say permanent damages were given in the face of an instruction, which was given, that Pickens could “not recover any damages that may have resulted to him since the institution of the suit, or which may accrue to him in the future by reason of injury complained of in the declaration.”