202 N.W. 27 | Minn. | 1925
The logs in controversy were not marked, and the trial court based its ruling upon section 5474, G.S. 1913, which contains this provision:
"All logs and timber found in the waters of any lumber district, not in the possession or under the control of any person, which have no distinctive mark, or marks which are not recorded in the proper district, shall be deemed abandoned, and shall not be recognized as property by the courts."
Plaintiff contends that this statute violates the constitutional provisions that no person shall be deprived of his property without due process of law, nor be denied the equal protection of the laws, nor a remedy for wrongs.
The original of this statute was enacted in 1862. As found in the General Statutes of 1866, c. 32, § 23, it read as follows:
"Any logs or timber cut in this state, or coming into this state in the first district at any point on the lake St. Croix above the city of Stillwater, the marks of which are not recorded in the district in which they were cut or into which they may come, and all logs or timber not bearing any distinctive mark shall not, in favor of the person who has cut the same or claims to be the owner thereof, be recognized, deemed or held in any of the courts of this state to be the property of any such person, for any purpose whatever, in any action or proceeding."
In Plummer v. Mold,
In Stanchfield v. Sartell,
The court said that the facts did not bring the logs, there in controversy, within the operation of the statute and that it was unnecessary "to consider whether, as applied to any possible circumstances falling within the purpose and scope of the statute, it would be unconstitutional."
The statute was cast into its present form at the revision of the laws made in 1905. The change in language was doubtless, in part, to make it conform in terms to the construction which had been given to it by the court. The three following cases arose since the revision.
In Astell v. McCuish,
In Cotton Lumber Co. v. St. Louis River D. I. Co.
In Sheldon-Mather Timber Co. v. Itasca Lumber Co.
Lumbering has been recognized as one of the important industries of this state from the beginning and all streams capable of floating logs were declared public highways for that purpose at an early date. The logs of different owners were thrown into these streams and unavoidably became intermingled as they were driven to the mills or to market. That the logs of the different owners might be easily identified, the law provided for marking them and for recording the marks. To secure an observance of those provisions, and to prevent controversies and litigation between the users of these common highways, the law here in question was enacted. The extensive lumbering industry of the state has operated under it and recognized it as a valid law for more than 60 years. It is true as stated by plaintiff that this court has never expressly passed upon the question of its constitutionality. The court apparently assumed that the statute was valid, and disposed of most of the cases in which it was invoked on the ground that the facts did not bring them within its operation. It was given full force and effect, however, in the Astell case, but its validity seems not to have been challenged in that case. Where a statute has been acquiesced in and acted upon in such important matters and for such a length of time, a court will not declare it unconstitutional if by any reasonable construction its validity can be sustained.
But, aside from such considerations, we think the legislature was within its prerogative in declaring that logs, not marked for identification as provided by law, found in waters used as a common highway for the floating of loose logs, and not in the possession or under the control of any one, should be deemed abandoned. As interpreted in the cases cited, we think the statute is within the police power of the state. See Osborne v. Knife Falls Boom Corp.
Plaintiff alleged in his complaint, and the answer admitted that the logs were of the value of $2,550. Thereafter plaintiff served an amended complaint alleging that the logs were of the value of $1,327.20. The amendment was stricken on defendant's motion on the ground that plaintiff having obtained possession of the property *46
could not dispute the value as alleged by him in the complaint, bond and affidavit under which he obtained such possession. We think the ruling was correct. Weyerhaeuser v. Foster,
The statute does not apply to logs in the possession or under the control of the original owner or of those to whom he has intrusted them. The logs on the rollways were on plaintiff's land and in his possession and were not within the operation of the statute. Some of these logs were taken but their full value was deducted in fixing the amount of the verdict.
Logs lying in shallow water and partly imbedded in the mud on the shore of plaintiff's land were also taken. He was allowed nothing for these. They were not adrift on the lake and had not passed out of his control within the meaning of the statute. They were still his property, and it was error to direct a verdict against him for an amount which included their value. For this reason there must be a new trial.
According to the evidence, the logs which floated away after the booms broke were permitted to drift about the lake for two years or more with no attempt to recapture them or regain control over them in any manner. They were taken by defendants at a time when other logs were in the lake. They were within the operation of the statute, and could be lawfully taken and appropriated by defendants. But the judgment is reversed for the reason above stated.
Reversed. *47