St. Louis River Dalles Improvement Co. v. C. N. Nelson Lumber Co. , 51 Minn. 10 ( 1892 )

Vanderburgh, J.

The statutory powers and duties of the plaintiff corporation are set forth in the opinion on the former appeal herein, 43 Minn. 131, (44 N. W. Rep. 1080,) reference to which is here made. The plaintiff alleges in the complaint that it made and perfected the improvements in the St. Louis river contemplated and required by the several acts of the legislature mentioned in the complaint, in order to facilitate the running of logs in that portion of the river designated by the legislature, and that it was therefore entitled to charge and collect the tolls authorized for all logs coming within the limits of its jurisdiction, and run or' driven through and beyond the same. That portion of the river designated in plaintiff’s charter extended from the east line of township forty-eight (48) to the west line of township forty-nine (49,) range sixteen (16). The improvements consisted of the removal of obstructions and blasting out of rocks in the hed of the stream, and in the construction of dams to make slack-water navigation and to turn the water into the channel so as to make that portion of the river navigable for logs. This action is brought to recover a large sum of money for tolls upon logs of the defendant which had been collected and were held in the Knife Falls boom, above the works of the plaintiff, and in high water in the month of June, 1888, had broken loose, and been carried away by the irresistible force of the freshet, down the river and beyond the limits of defendant’s jurisdiction.

The determination of this appeal depends largely upon the question whether certain findings of fact by the trial court are supported by the evidence. The court finds, among other things, that plaintiff’s improvements consisted, as above stated, in blasting out and removing boulders and other obstructions from the bed of the stream, and constructing wing and roll dams for the purpose of confining water and logs in the current of the stream; the latter being the principal part of the improvements. “The said improvements altogether were suitable and sufficient to make said portion of the stream navigable for logs at the most favorable period of the driving season, but at no other time, and such favorable period lasted ordinarily not to exceed two or three weeks in the year. It was practicable, though not without considerable increased cost, to so plan and construct said improvements as to render said part of said stream navigable for logs, or so that logs could be driven down the same, whenever the stream above the plaintiff’s limits was so navigable or drivable.” It is further found that the flood which broke the booms and carried out defendant’s logs also swept away or practically destroyed all of the plaintiff’s works and improvements, save only the clearing out of the bed of the stream. This happened before defendant’s logs reached plaintiff’s works, and plaintiff’s works and improvements were so swept away and destroyed from half a day to one day before any of defendant’s logs reached the upper limits of plaintiff’s territory, as defined in its said articles of incorporation. The evidence justified the conclusion that the improvements made by plaintiff were available to aid in driving logs in ordinary stages of water when it would be safe and proper to turn out logs from the boom in the river above, but the dams were not sufficient to withstand the force of the volume of water and logs in this instance; and there is evidence in the case, in defendant’s behalf, which tends to prove that the dams were not planned and constructed properly, and were not strong enough for high water, and that in a freshet the action of the water alone was sufficient to carry away or destroy the same. The result shows that the dams were so injured as to render them of no subsequent practical use in driving logs, until repaired or rebuilt, which has never been attempted. These dams, ten in number, were erected at different points along the stream within the designated territory, from about one quarter of a mile to a mile apart. There is evidence that several were disrupted, and sections thereof carried out and down the river, before the logs broke through the boom; among others, the “roll dam,” No. nine (9,) extending across the river, being about midway or a little below that, between the upper and lower dams. These dams had become so dilapidated by the action of the water alone, as to cease to be of any value as improvements for the navigation of logs, before the arrival of the defendant’s logs in that portion of the river. The testimony of the defendant’s witnesses in respect to the time when the particular dams in question were broken up, and in respect to the condition of the rest after the flood subsided, and the intrinsic defects in their construction as respects their sufficiency to withstand high water, is all the evidence there is in the case to support the finding of the court in reference to the destruction of these improvements before defendant’s logs reached that part of the river; but it is at least sufficient to show that some of the dams deemed essential to the improvement of that portion of the river in which they were placed, had before that time been practically destroyed, and had ceased to be of any use for the purposes intended. The improvements in that part of the river having gone out, it cannot be said that the tolls were earned because the logs floated down upon the flood. Nor is it material that all the dams had not gone out, or that other improvements in removing the obstructions from the bed of the channel were unaffected by the freshet.

It is a well-established rule that privileges conferred by statute in derogation of common right must be strictly construed; and the plaintiff was not entitled to demand tolls on logs after the improvements ceased to be such as the statute required to be constructed. Swift River & B. B. Imp. Co. v. Brown, 77 Me. 42.

The evidence as to the damage to the improvements by the flood was all received without objection, and the case was tried as if tbe facts were properly pleaded. It is too late to raise the objection of the relevancy of the evidence.

The rights and duties of the plaintiff are reciprocal. The right to demand tolls depended upon the continued existence of the improvements; and as the court properly found upon the evidence, the most expensive and important part of the improvements was the construction and maintenance of the dams. Lehigh Coal & N. Co. v. Brown, 100 Pa. St. 338, 341; Green River Co. v. Palmer, 83 Ky. 647; Chase v. Dwinal, 7 Me. 137.

The conclusion that the plaintiff is not entitled to recover the tolls demanded is justified, and the order denying a new trial must therefore be affirmed.

{Opinion published 53 N. W. Rep. 976.)