Weymouth v. Beatham , 93 Me. 525 ( 1900 )

Haskell, J.

This is an action to recover compensation for driving defendant’s logs that had become intermixed with plaintiffs’ logs so that they could not be conveniently separated therefrom. The case comes up on exceptions by plaintiffs. The verdict was for the defendant. The evidence is not reported, and the facts must be taken as stated in the bill of exceptions.

The plaintiffs and defendant were owners of logs in the Piscataquis river, destined for the boom above Bangor in the Penobscot. Their respective logs became intermixed in the Piscataquis at the mouth of the Sebois stream, and were driven by the plaintiffs out of the Piscataquis into the Penobscot. There a part of the intermixed logs became again intermixed with the East Branch drive, and was driven to the boom by those in charge of that drive, to whom the plaintiffs and defendant paid compensation respectively. A part of the remainder of plaintiffs’ drive of intermixed logs was driven to the boom above Bangor, and part of them was left along the shores and in jams in the Penobscot above the boom, and were not driven in by the plaintiffs.

Had the destination of the plaintiffs’ logs been the mouth of the Piscataquis, and had they there separated the defendant’s logs from their own and turned them into the Penobscot, they would have been entitled to compensation for driving defendant’s with their own, for they would have then driven them home, that is, to the destination of their own drive. That is the doctrine of Bearce v. Dudley, 88 Maine, 410. In that case the plaintiff drove the defendant’s logs in a mass with his own down the Androscoggin to Lewis-ton, the place of destination of plaintiffs’ logs, and there separated defendant’s logs and turned them adrift down river towards Tops-ham, the place of their destination, and the plaintiff was allowed pro rata compensation for driving the mass.

In the case at bar, plaintiffs turned the intermixed mass into the Penobscot, where a part became intermixed with the East Branch drive, and with it were driven to the boom. Had the plaintiffs driven the remainder clean to the boom, then all defendant’s logs would have been delivered at their destination, and no good reason can be given why defendant should not have contributed to the expense of driving his logs to market by whomsoever incurred it. But this plaintiffs did not do. They left the intermixed mass along the shores and on the rocks of the Penobscot, as suited their own convenience, over a distance of forty miles. The defendant must then either lose his stranded logs or bear the expense of collecting them from shores, coves, rocks and shoals, at a much larger expense, perhaps, than the cost of driving them in the first instance. He who undertakes to drive logs intermixed with his own, at the expense of the owner of them, must drive them clean, reasonably clean. He cannot scatter a part by the way and only drive those logs that may be conveniently driven, perhaps without much expense, and leave the owner to gather those stranded or lose them. It must be remembered that the whole mass of intermixed logs was driven by plaintiffs out of the Piscataquis. They had taken control of the mass, and should have seen to it that they were driven home as a pre-requisite of compensation therefor. If a part became intermixed with another drive, and so were driven in, the defendant could not have been prejudiced thereby. His logs would have been all delivered at their destination, and it would be just to require him to pay for the benefit of the service received.

The whole charge is neither reported nor made a part of the exceptions. It is presumed that appropriate instructions were given relative to the particular facts of the case, except so far as the extract therefrom excepted to show the contrary.

The extract excepted to is this :

“ He [a plaintiff] exercises his option either to take them along [the intermixed] logs, or leave them where he pleases. But if he decides to take them along, the intermixed logs, with his to the place of destination, then he assumes the control and the duty of taking them all along with his drive, just as much as if he had undertaken by contract to drive them.”

That instruction is correct as a rule of law. Conditions might call for more explicit explanation in its application to the facts of a case, as, for instance, that the intermixing with the East Branch drive, if the intermixed logs were driven in, would not preclude recovery. Such an instruction is presumed to have been given. If not given, it should have been requested. But whether given or not, upon the facts stated in the exceptions the plaintiffs should not recover, for they admit that they neither did, nor did they try to drive the remaining logs reasonably clean, which fact ought to bar their recovery. This would have been so if no logs had become intermixed with the East Branch drive, for the plaintiffs then would have been required to make a reasonably clean drive of the whole mass of logs before recovery.

The remaining extract excepted to is a quotation from Bearce v. Dudley, and is applicable to the facts, as the destination of both plaintiffs’ and defendant’s logs was the same boom, and had reference to the scattering of defendant's logs all the way from the Piscataquis to the boom.

Exceptions overruled.