72 Wis. 464 | Wis. | 1888
There is some language in the complaint which would imply that the plaintiff was organized under sec. 1777, R. S., but no right of recovery is based upon that section. The plaintiff was organized under the general statutes for the purpose of driving and handling logs in the Wisconsin river. It does not pretend to have made any improvement in that river in aid of navigation, nor to have built any works thereon to render the driving of logs more certain and feasible. Whatever statutory right of action the plaintiff has is founded upon sec. 3337, R. S. [amended by ch. 141, Laws of 1881], which gives compensation to an owner for driving the logs of another which have become so intermixed with his logs that they cannot be conveniently separated, and which he is compelled to drive, where such other person neglects or refuses to furnish any necessary aid or materials for driving lfis own logs. It is a claim for driving logs by necessity, as counsel say, or where one party has the benefit of another's service, for which in equity he ought to make compensation. It is obvious that where a stream is filled with the logs of different owners, all intermixed, no one owner can use the stream for driving his own logs, without at the same time driving the logs of others; and the statute goes upon the equitable principle that where labor is rendered under such circumstances the party rendering the service is entitled to a reasonable compensation for it from the one who is benefited thereby. If the logs of A. become so intermingled with the logs of B. that it is impossible for the latter to drive his logs without driving the logs of the former, it is but just that B. should be paid by A. what his service is reasonably worth. A. should either make such just compensation or furnish the necessary
It is said, however, that the statute does not apply to the case, because the plaintiff was not the “owner ” of the logs which it attempted to drive or handle. We do not think the provision should be confined to the case where the party rendering the service is the absolute owner of the logs. The plaintiff was undoubtedly a bailee of the logs which it attempted to drive, and therefore had a special property in them. It was not a trespasser which had no right to interfere with the logs which it had undertaken to drive. It is true the statute says, “Whenever two or more persons own logs or timber” which are so intermixed that they cannot be conveniently separated; but the word “owner,” as here used, includes a person having possession under a special title or interest as a bailee, as well as the absolute owner of the property. The statute is remedial in* its nature, and should have a liberal construction. As a matter of fact, we know that the word “ owner ” is often used to designate a person having an interest in property under a special title, and wo have no doubt that it was used in that popular sense in the provision under consideration. The statute authorizes the organization of corporations for driving, sorting, and delivering logs and timber (sec. 1771, R. S.), so the plaintiff had the legal right to take charge of logs intrusted to it to drive. Of such logs it was clearly a bailee for hire, and within the provision.
But it is said the statute was not intended to apply to cases where the logs were banked at different points, and became intermixed after the commencement of the drive. The language is, where the logs “ are so intermixed that they cannot be conveniently separated for floating or driving to the place of destination;” and it is plain that this intermingling in the river may take place after as well as
A further objection is taken to the statute, which is that all persons have the legal right to use the Wisconsin river to drive their own logs, and that this right the legislature-cannot abridge or impair. But the legislature does not attempt to impair the right to use the common highway, or prohibit its use, by any one. It merely provides, where logs become so intermixed that one owner cannot exercise his right of navigation without driving the logs of another, that the latter must furnish his share of men and material to make the common drive, or pay a reasonable compensation for driving his portion. This grants no monopoly over the stream to any one, nor does it exclude an owner from jits use who is willing to contribute his necessary share of the expense in case of the intermingling of the logs. The river remains open to all to drive logs in. No one is authorized to assume control over and drive the logs of another, except in case of an intermingling, where he may do so in order to make his right of navigation of any avail. As we have said, we can see no valid objection to the statute, and dismiss the question, therefore, without further discussion of it.
It results from these views that there was no error in refusing to set aside the verdict of the jury on the grounds that it did not find upon all the material issues.
By the Court.— The judgment of the circuit court is affirmed.