Opinion
(Decided 23 December, 1898.)
Allegation — Proof — Issue — Negligence.
Where a stream is found by the jury to be a "floatable" stream, and the complaint charges that the plaintiff's dam was injured by the defendant unlawfully and willfully floating logs over the dam, there being no allegation of negligence on the part of defendant, an issue as to such negligence ought not to be submitted to the jury, nor found by them without proof.
CIVIL ACTION to recover damages for injuries to plaintiff's mill by defendants while floating logs in Tuckaseigee River, tried before Norwood, J., and a jury, at Fall Term, 1897, of JACKSON Superior Court.
The complaint alleged: IV. That the defendants on 1 December, 1892, and before and since said day, have, regardless of the plaintiff's rights, unlawfully and willfully rolled and placed into said Tuckaseigee River large numbers of large logs, lumber and timber, and permitted and caused the same to be floated down and over said mill dam in such manner as to break down and destroy said dam, to the great damage of plaintiff, to wit, $1,000.
The answer alleges: 2. That the Tuckaseige River, at, above and below the alleged location of the plaintiff's alleged dam, is a floatable stream, in fact and law, and is such and is now and has at all times heretofore been capable of being used for floating rafts, boats, logs, timbers and other products of the country to markets and mills lower down, and is now and has been at all times heretofore in this respect a navigable and floatable stream and subject to the public use as a (672) public highway; and as such public highway was and had been for a long period of time prior to the first day of December, 1892, used by all persons desiring to float rafts, boats, logs, timbers and other products of the country along its banks to markets and mills lower down.
Among the issues submitted by his Honor was: 4. At the time of the alleged injury was the Canada Fork of the Tuckaseigee River, at the point of the alleged injury such a stream, that business men may calculate that with tolerable regularity as to seasons the water will rise to and remain at such a height as will enable them to make it profitable to use it as a highway for transporting logs to markets or mills lower down?
The jury responded, Yes.
His Honor also submitted issue 6: Was said dam injured by the negligence of the defendants?
The defendants objected to this issue on the ground that there was no negligence alleged in the complaint. Objection overruled; defendants excepted.
The jury responded, Yes.
The defendants objected not only to the submission of this issue to the jury, but also to the finding of the jury thereon, on the ground that there was no evidence of negligence. Objection overruled; defendant excepted.
Upon the question of negligence allegation and proof appear to be wanting.
The jury assessed the plaintiff's damages at $20.
Judgment accordingly. Appeal by defendant.
Moore Moore and W. E. Moore for defendants (appellants).
W. T. Crawford for plaintiff.
This action was brought by the plaintiff against the defendants to recover damages which the plaintiff alleges that he had sustained by reason of the defendants having unlawfully and willfully rolled and placed into Tuckaseigee River large numbers of logs, lumber and timber, and permitted and caused the same to be floated down against his mill dam, by which the dam was broken down and destroyed. The defense was that the stream was a floatable one and therefore a natural highway, and that the plaintiff's injury, if any he suffered, was without remedy, no negligence being alleged or proved.
The court submitted an issue as to whether the dam was injured by the negligence of the defendants, and instructed the jury that if they should find that the river was a floatable stream where the plaintiff's mill and dam were located, still the defendants would be liable if they negligently injured the plaintiff's dam in the floating of the logs. The defendants objected to the issue and excepted to the charge of his Honor upon it.
The issue should not have been submitted, for the complaint did not allege negligence on the part of the defendants, nor was there a scintilla of evidence that the defendants did anything except cut the logs and put them in the stream for floating down the river. The words unlawfully and willfully mean simply that the act of cutting and putting the logs in the stream was contrary to the plaintiff's right and intentionally done. There must be a new trial of this case for that error.
New trial.