Bear-Camp-River-Co. v. Woodman

Mellen C. J. delivered the opinion of the Court as follows. Three objections are urged against the correctness of the opinion and instructions of the Judge who tried this cause in the Court of Common Pleas. The first is, that by the act of incorporation the plaintiffs are not entitled to any action for the toll by law established ; becausé the company are authorised to stop and detain logs and lumber till the toll shall have been •paid. But the same section provides that the toll may be “ demanded and recovered” by said company. The right to detain is only an- additional security and remedy. In a vast number of instances a person may have a lien on property for his fees or compensation, — but this does not take-away his right of action. This objection therefore fails. The second objection is, that if any action will lie, it must be ■deM, and not assumpsit. But it does not follow that debt is the only proper action ; and on examination of the authorities cited to this point by the plaintiffs’ counsel, we are well satisfied that .assumpsit lies. It can make no difference in principle' wdiether the plaintiffs hy their agent informed the defendant that he might [407] convey his logs through the passage at the toll fixed; or whether their act of incorporation gave- him this notice. In either case, when the defendant run his logs through the passage, he must be considered as agreeing to the terms proposed, and assuming to pay the established toll. This objection therefore is not supported. The third objection is, thaf the company never .cleared the river of obstructions, in the manner prescribed in the act, with? in one year after it was enacted ; and that according to the last section, the act, at the end of the year, became void ; and the company therefore have no right to the toll demanded. The act authorized the plaintiffs to remove “ all logs, tr§es, drift-wood and other things which tend to obstruct the free “ passage of mill-logs and lumber of any kind down the river,” &c. It does not appear, by any fact in the case, that all this was not done. No complaint is heard from any quarter except from the defendant; — and it is proved that all his logs — about three hundred — passed down the river without having been impeded by any kind or degree of obstruction. Whether the river had been properly cleared or not, was a fact, which, being left to the jury, they have found in the affirmative — that there was a free passage for logs down the river. We perceive no incorrectness in the instructions of the Judge on either of the points taken; — and therefore we overrule the exceptions and affirm the judgment of the Court of Common Pleas.