72 N.Y. 211 | NY | 1878
The referee finds that, in the winter of 1866-7, the defendants, who are thirteen in number, or the several firms of which some of them were members, severally caused to be cut and placed on the ice in Racket river a large number of saw-logs, for the purpose of being floated down the river to their several mills during the high water in the spring of 1867; that on the 2d of March, 1867, they entered into a written contract with John Snell and John Douglass, by which the latter agreed to take all the logs of the respective defendants which were or should be put into the Racket river during the then present season, and drive and run them *214 down and deliver them in the booms of the respective parties; that they (the contractors) should drive all the logs bearing the marks of the respective defendants, both new and old logs, and should drive the said rever as clean and clear of logs as it had theretofore been done, not including the year 1866; that they should separate said logs at their respective booms in the usual manner, etc.; that the roll banks should be broken by the respective parties owning the same, and the logs set afloat; and that the owners of the logs should pay for the services five cents for each standard log put into the river by the respective owners, and that the logs should be delivered during the spring of 1867.
It is also found that George Richards Co. also placed logs in said Racket river, or its tributaries, to be floated to Potsdam, and employed servants to drive them down; that the logs of all the defendants, except one, mingled together, and thus mingled during the months of April and May, were driven down the Racket river by Snell and Douglass, and men employed by them, and by men employed by Richards Co., and a large number of them lodged and formed a jam against the bridge in question in this action, and carried away and destroyed the bridge. It is not found by whose logs in particular the injury was done, but it is found that it was caused by the negligence of the parties in charge of the drive; that a force of men was kept in the rear to pick up and keep in the channel stranded logs, and to break up and send forward any jams that should form, but no men were sent ahead to prevent jams, and none were stationed at the bridge in question to keep it clear, though four men would have been sufficient for that purpose. It is also found that logs were taken into the drive at different points along the route.
Upon this state of facts, we think the case clearly falls within the principle of Blake v. Ferris (
It is claimed that the defendants are liable, because, putting the logs in the river was, in itself, dangerous, and that was done by them. But there is no such finding. On the contrary, it is found that the injury was caused, not by any inherent danger inseparable from the undertaking, but by the negligence of the parties in charge of the drive. As soon as the logs were afloat, they were placed under the entire control of the contractors, and so far from the enterprise being necessarily attended with danger, the referee finds that four men stationed ahead would have been sufficient to prevent the jam at the bridge and avert the injury.
Neither was the undertaking unlawful. It appears from the findings that it had been customary to float logs down the Racket river for thirty years, and that the Legislature had repeatedly recognized such use of the river as lawful by making appropriations for improving it by removing obstructions and constructing improvements for the express purpose of allowing the passage of logs and other lumber, etc., and that in 1850 an act was passed declaring it a public highway for the purpose of floating logs and lumber. It is claimed that this latter act was unconstitutional, as it provided no compensation to riparian owners. But that objection can be set up only by such owners when their rights are interfered with. Independently, however, of that act, the law of this State recognizes the right of the public to use such streams, though private property, for rafting and floating logs, as far as necessary for public accommodation. (Palmer v. Mulligan, 3 Caines, 315; Shaw v. Crawford, 10 J.R., 237; Ex parte Jennings, 6 Cow., 518; Browne v.Scofield, 8 Barb., 239; Morgan v. King, 18 id., 282, and
We conclude, therefore, that the thing contracted to be done, not being in itself unlawful, or necessarily dangerous to third parties, the owner of the property is not liable for damages arising from the negligence of the contractors or their servants in the manner of performance of their contract, but they alone are responsible for such negligence.
This conclusion renders it unnecessary to pass upon the question of the right of the town to maintain the action, which is not free from difficulty.
The judgment should be reversed, and a new trial ordered; costs to abide the event.
All concur.
Judgment reversed.