Bearce v. Dudley

Haskell, J. Case under P. S., c. 42, § 6, for driving pulpwood intermixed with logs so that it could not be conveniently separated. I. It is denied that the statute applies to pulp-wood. Its language is, "timber so intermixed with logs . . . that it cannot be conveniently separated.” Its purpose was to comprise all products of the forest conveniently floatable to market. The statute was passed in 1831, c. 521, § 7. The language there used was "all logs or other timber.” The words "all logs or other” have been dropped by revision without intent to change the meaning. These words indicate an intent to include not only logs but other wood-products, and the word timber there used and retained in the revision was intended to have a comprehensive meaning suited to the purpose of the statute. In United States v. Stores, 14 Fed. Rep. 824, on an indictment for cutting "timber” upon the lands of the United States in violation of the act of March 2, 1831, that prohibits the cutting of "live-oak, red-cedar and other timber,” the court says : "The term 'timber’ as used in commerce, refers generally only to large sticks of wood, squared or capable of being squared for building houses, or vessels ; and certain trees only having been formerly — 416 — used for sucli purposes, namely, the oak, the. ash, and the elm, they alone were recognized as timber trees : but the numerous uses to which wood has come to be applied, and the general employment of all kinds of trees for some valuable purpose, has wrought a change in the general acceptation of terms in connection therewith, and we find that Webster defines 'timber’ to be 'that sort of wood which is proper for buildings or for tools, utensils, furniture, carriages, fences, ships, and the like.’ This would include all sorts of wood from which any useful articles may be made, or which may be used to advantage in any class of manufacture or construction. "With so many peculiar significations, the intended meaning of the word usually depends upon the connection in which it is used or the character of the party making use of it,— as, for instance, a ship carpenter would understand something quite different when he made use of it from what a cabinet-maker, or last-maker or a carriage builder would,— and the question is, therefore, not what is the popular meaning as understood by any one class, but its meaning as used in the statute, and how the legislators have employed it; and this must be its most general and least-restricted sense, including in such signification what each and all classes would under such circumstances understand 'timber’ to be. The language of the section under which this indictment was found mentions particularly live-oak and red-cedar trees, and then speaks of other timber, showing conclusively that it was not the intention of congress to confine the protection intended to any particular class or kind of trees, but to apply it in its most general sense.” See also R. S. of U. S. § § 2317, 2465 and 2466, giving persons planting and protecting timber patents therefor,— a use of the term in its broadest sense. In United States v. Briggs, 9 How. 351, an indictment for cutting white-oak and hickory trees on the public lands under act of congress 2 March, 1831, to prevent cutting, destroying or removing live-oak or other timber or trees reserved for naval purposes, prohibiting the cutting of "any live-oak or red-cedar tree or trees or other timber,” it was held that the cutting of — 417 — oak and hickory trees was prohibited, and the court says : " And so the cutting and using of any other description of timber trees from the public lands would be equally indictable.” In Nash v. Drisco, 51 Maine, 417, under a permit to "cut and haul all the timber and bark . . . down as small as ten inches at the stump or butt of the trees,” the instruction " that the word ' timber ’ in its etymological sense, might embrace nothing but materials for building or manufacturing pitrposes,” was held correct. The trend of all the authorities is to construe the word timber, in a statute like the one under consideration, comprehensive enough to work the purposes of the enactment. The purpose of this statute was to give those using the waters of the state to float the wood-product of our forests, suited for manufacture, to market, equal rights and a convenient remedy under circumstances and conditions, where the common law remedy was inadequate, and compass a result in furtherance of the interests of all concerned. Drives of logs sometimes unavoidably intermingle, and the expense of separation is simple waste. Joining drives, by authority of law, makes a saving to somebody in the operation, and this statute fairly apportions the cost of the whole work. The benefits of it are equally useful whether the drives be of saw-logs, ship-timber, pulp-wood, or any other wood-product suitable for commerce or manufacture that may be conveniently driven to market; and whoever incumbers our rivers with material of this sort for the pux'pose of floating it to market ought to come within the px-ovisioxxs of the statute, and the legislature must have intended that they should. It could not have intended the legislation for some classes and not for all. It is remedial and must be most liberally construed when necessary to work out the pux'pose of the legislation. II. The remaining question is principally of fact, best suited for the determination of a jury, but reported in order to determine the legal rules applicable to the assessment of damages. Float-able streams are public, and should afford equal facilities to all using them under the exigencies of each particular case. What — 418 — would be a reasonable use of one stream might be an unreasonable use of another, and destroy its public utility altogether; so that while some general rules of law may be applied in these cases, no rule of conduct or use can be given that will apply to all cases. If a man wishes the use of a stream, and no other person wants it, he may incumber it with his lumber in a way that could not be permitted for a moment when others at the same time need the use of the same stream. The stream is free to all, and if its capacity for floating logs be inadequate to serve the purposes of all, each one must so conduct as to give the others a reasonable share of its benefits. No man has a right to turn his lumber into a stream and leave it to itself in the way of others. He may turn it in when he pleases, but he must drive it and keep iteout of the Way of the one following. He cannot land some logs on the ice, turn more in at the first pitch of water, leaving them to make their own way toAvards market while he shall have cleaned off his operation and made it more convenient for him to make a clean drive, if others, meantime, Avish the Avay clear for their logs. If a man turns a part of his logs into the stream and leaves them to themselves, so that the next drive be embarrassed or hindered by them, he becomes liable at common larv for obstructing the common way, or under the statute to pay for driving the same, and it matters not Avhether such driving be of benefit to him or no. If he chooses to leave part of his logs without cai’e to make their own way, intending to make a clean drive Avhen the balance shall be turned in, and thereby is put to the expense of two drives Avhen, if left the entire use of the river, he need make but one, the result is from his own conduct that has interfered with the equal use of the river to all. . In this case defendants turned some of their pulp-logs into the river in ad Alance of the plaintiffs’ drive and left them to make their own way down stream. The plaintiffs came along with a drive of logs that intermixed with defendants’ so that separation was costly and vexatious. The plaintiffs drove the whole mass and seek pay for the same under the statute. They are entitled to have it; and it is no defense to say that it was of no benefit — 419 — to defendants or that the plaintiffs had still another drive later when all of defendants’dogs would have been turned in. The plaintiffs had a right to make two drives or six, and a right to a reasonable use of the river for the purpose. Logs turned into a river are to be driven and are no more to be allowed to scatter along its banks, eddies, rips, falls and meadows, than a flock of sheep, when driven in the highway, can be allowed to scatter and embarrass other drovers, or depasture the herbage of the owner of the fee. Rivers, like highways, are to give passage and not to loiter upon to the annoyance of others wishing to use them. It is said that the plaintiffs did not make a clean drive of the defendants’ logs. They were not inquired to. They were-allowed only to drive such of the defendants’ logs at their expense as became intermixed with their own so that-they could not be conveniently separated. Such logs they might drive and. none others. They could not roll landings, clear eddies, or in any other way interfere with such of defendants’ logs as had not interfered with their own. When a log once became intermixed, they might drive that log all the way, even though it afterwards cleared itself from the mass, for once intermixed the-the plaintiffs’ right of custody attached, and if they assumed to. drive it at all, they must drive it home. They could not drive-a part of the intermixed logs and scatter the rest along the-river, driving only such part as was convenient. That would not be reasonable. When intermixed logs are once taken charge of to be driven at the expense of the various owners, they must be driven clean,— all driven. The measure of damages would be the pro rata expense of driving the mass. In the present case it is clear enough that the plaintiffs drove clean those logs of the defendants that had become intermixed with their own. They were of a different kind from the plaintiffs’ logs. There is much difference of opinion as to the relative cost of driving the twro classes — saw-logs and pulp-logs, long logs and short logs — and a jury had better have assessed the damages. They saw the witnesses and felt the spirit of the trial. From cold type it — 420 — ds hard to arrive at a satisfactory result, but, on the whole, we conclude that an equitable assessment of the damages, apportioning them pro rata as near as possible, would be $2000. Defaulted.