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Graves, C. J. The charge brought against the company, and which the plaintiff called upon it to answer, was for damming up the water by gates, booms, timbers, chains, ropes, pins, poles, logs and other appliances, and thereby flooding the plaintiff’s land. The circumstances of the wrong were laid as being acts of a direct and positive nature, and the instruments used were described in terms, with a single exception, where a general expression was introduced. But in that case the meaning would accord with the subject-matter (Broom’s Max. 575), and the construction would follow the rule that words of specification draw into the same class those general terms which are superadded to attain the end without further prolixity. American Trans
*197 portation Co. v. Moore 5 Mich. 368; Hawkins v. Great Western R. R. Co. 17 Mich. 57; McDade v. People 29 Mich. 50; Brooks v. Cook 44 Mich. 617.The case brought against the defendant was consequently one of malfeasance, and was so exactly marked out by the facts set forth as to leave no room for speculation in regard to its legal identity. It seems, however, that no evidence was put in to convict defendant of the form of injury thus alleged. The charge so informs us. Still, the jury were allowed to return damages on the supposition of some remissness of defendant in its management of drives; or, in other words, the court considered it competent for the plaintiff, under a complaint for malfeasance, to recover upon a supposed non-feasance. We are not able to assent. Funk v. Arnold 3 Yeates 428; Breedlove v. Turner 9 Mart. (La.) 353; Dunlop v. Munroe 7 Cranch 242; Doane v. Badger 12 Mass. 65, 69; Mayor v. Humphries 1 C. & P. 251; Hullman v. Bennett 5 Esp. 226; Fitzsimons v. Inglis 5 Taunt. 534; Parker v. Rensselaer & Saratoga R. R. Co. 16 Barb. 315; Hill v. Supervisor &c. 10 Ohio St. 621; Simonds v. Pollard 53 Vt. 343 (1881); 1 Chit. Pl. 140, 141, 147, 402.
Campbell and Cooley, JJ. concurred. Cooley, J. In this case the boom company is sued for damming and obstructing a river by logs, booms &c., and thereby setting back the water and causing it to overflow the plaintiff’s land. On the trial the circuit judge submitted the case to the jury on the theory that there was no evidence in the case showing that the company had done any act to obstruct the river as charged, but told them, in substance, that they might find the company responsible for a failure to perform with diligence its duty to float the logs cast into the river by others, and to run them in proper manner so as to prevent injury to the plaintiff’s land by backwater. On this instruction the plaintiff recovered upon a case not made by his declaration, and which defendant had not been called upon by the pleadings to meet.
*198 If we could judge of the case by this record, we should believe the plaintiff has strong equities; but when the plaintiff recovers upon a case that he has not summoned the defendant to meet, we cannot know that the defendant has in fact attempted to meet it. But whether he has or not, it is certain he was not required by law to do so.The judgment must be reversed with costs and a new trial ordered.
Graves, O. J. and Campbell, J. concurred.
Document Info
Judges: Campbell, Cooley, Graves, Sherwood
Filed Date: 12/21/1883
Precedential Status: Precedential
Modified Date: 11/10/2024