West Br. Boom Co. v. Penn. Joint L. & L. Co.

Opinion, Mr. Justice Clark: By its charter the West Branch Boom Company was authorized to erect and maintain a boom on the south side of — 156 — the West Branch of the Susquehanna river near Lock Haven; and to this end, to construct such piers, side branches, or shear booms as might be necessary for stopping and securing logs or other lumber floating upon the river; and' they are required at all times, to keep and maintain these piers and the booms sufficiently strong to secure all the lumber contained therein. The charter clearly contemplates the several distinct classes of lumber which, floating on the river, would come in contact with or be caught in the boom, and defines the duty of the company with respect to each: First, it was provided that rafts of logs or other lumber might be landed and fastened as theretofore, and that any staved or broken raft coming into the boom should be delivered to the owner, upon payment of a certain price in the nature of salvage. Second, that logs or other lumber might be driven into the boom for manufacture at Lock Haven, or to be formed into rafts and transported upon the water, in that form, to the place of their destination below Lock Haven. This would seem to have been the first and principal object in view in the construction of the boom, as it is provided in the charter as follows: “It shall be the duty of the corporation to cause the passage ways or open spaces to be carefully guarded day and night, so that no lumber be permitted to escape; to raft all lumber in said booms securely and faithfully, with suitable warps and wedges for rafting and securing the same below the said boom.” The corporation had the right to charge and collect toll or boomage upon the lumber thus • boomed, rafted and secured, including warps, wedges, etc., at rates in the 6th section specified. Third, other logs and lumber rafted in above Lock Haven and destined for points below, and logs and other lumber not rafted, which were to be driven to. their destination below Lock Haven. As to this there was a proviso or saving clause to the second section as follows: “ Provided that said booms shall not extend more than half way across said river, and be so constructed as to admit the safe passage of rafts, boats, logs, masts, spars or other lumber, and not impede the navigation of said river and the branches thereof;” also a fike proviso or saving clause to the 7th section as follows: “Provided at — 157 — all times, that no lumber of any description shall be stopped, except upon the written request of the owner or owners of the same, and no toll or expense shall accrue to any lumber designed to run, or to be driven, to any point below Lock Haven; a free and unobstructed passage shall at all times be kept open so that the navigation of the river shall be as free as it now is.” It is upon the proper construction of these saving clauses that the controversy arises. Plaintiffs’ contention is, that as their Logs were destined to points below the Lock Haven boom, and due and proper notice of that fact had been given as required by the act of May 8, 1854, P. L. 666, the defendants had no right to stop them, or to detain them, for any length of time in their boom, under any circumstances or for any purpose; and that, having done so in the years 1883 and 1884, they are answerable in damages for the loss occasioned thereby. The defendants maintain, however, that this construction of their charter would give it no practical effect whatever; that the several provisos mentioned, if so construed, are totally repugnant to the body of the act of incorporation and would wholly defeat the public purpose which the legislature manifestly had in view in its enactment. Their contention is, therefore, that the saving clauses should receive such a reasonable construction as would not practically nullify their charter. They offered to prove, in substance, that the plaintiffs’ logs, for the detention of which damages are claimed in this suit, were thrown into the river, or some of its tributaries, in the winter or spring of 1883 and 1884, to be driven into the Susquehanna boom, 22 miles below the West Branch boom; that at or about the same time a very large amount of other logs, perhaps 200,000,000 feet or more, some destined for the West Branch boom, and some for the Susquehanna boom, were thrown into the same stream indiscriminately, and that, when the spring freshets came, the whole mass of logs was driven down the stream; that the swollen stream was filled with logs from bank to bank, and as the “ drive ” approached the West Branch boom, it was absolutely impossible to ascertain to which boom the logs were destined; that they could only be known by inspection of the marks on the ends of the logs, of which there were over 100 different kinds; that some of the — 158 — logs were in fact destined for Lock Haven, and some for Williamsport, but that the marks could not be seen nor their destination determined; that in order to secure the logs consigned to their custody, the West Branch Boom Company thereupon opened their boom, and received into it of the mass of the logs, without distinction, until their boom was filled, and suffered the residue to pass down the stream; that as soon as practicable, and with the utmost diligence and dispatch, they passed out of their boom all the plaintiffs’ logs and all other logs destined for points below Lock Haven; that they used every appliance and means, expended large sums of money, employed a great many men, and did everything in their power, or that it was possible to do by human ingenuity and skill, to deliver the logs of the plaintiffs below their booms so that they could be driven into the Susquehanna boom; thatthe marks are on the ends of the logs and it is impossible to ascertain to whom the logs belong, until the marks can be seen, and that can only be done when the boom is opened and the logs passed out. Was this testimony admissible ? Under the circumstances stated in the offer, had the defendants a right to detain the plaintiffs’ logs, until the marks upon them could be seen, and until they could be separated from logs which were consigned to their custody and care ? Boom companies are organized to carry on, on a large scale, and under one management, the business of driving and rafting logs which would otherwise have to be done by individuals; they are intended to supply facilities for the driving of logs to the general public, and are therefore quasi public corporations: Osborn v. Boom Co., 32 Minn. 412; Cohn v. Boom Co., 47 Wis. 314. “ It is doubtless true,” as we said in Brown v. Susquehanna Boom Co., 109 Pa. 68, “that such charters ought to be construed most beneficially for the public, and more strictly against the company, but the construction must be a reasonable one. The charters of most private corporations are for the purpose of private gain, and many of them grant exclusive privileges in abridgment of individual right; but as they are intended also to sub-serve great public interests, they should be so construed as not to defeat the purpose of their creation. The Susquehanna Boom Company was not only intended to serve the private interests of the corporation, but also that of the public, and — 159 — especially of those who with rafts, logs or lumber, should navigate the stream: it purposed to Jo for them what they could in no way do for themselves. Whilst therefore, the words of the charter should be construed with some degree of strictness for the public protection, they should not be construed to require the performance of what, in the nature of the case, ■cannot bo performed.’" It is a general principle in the construction of statutes, that a proviso or saving clause, which is directly repugnant to the body of the act, will not have effect to defeat the purpose of the enactment. This principle it is true will not apply in the construction of the charters of pritate corporations, where the matters contained in the saving clause are made, and intended to be made, an essential condition of the enjoyment of the charter. If private corporations accept charters under such circumstances, they take them cum onere; they must enjoy their privileges subject to the conditions, or not enjoy them at all; Dugan v. Bridge Co., 27 Pa. 809. But, even in such case, we must first be satisfied what the condition really is, and in' case of ambiguity or doubt, the intent of the legislature, in this respect, must be ascertained from a consideration of the whole instrument. In the case just cited, although the building of the bridge may necessarily have involved the erection of piers, yet it was not shown that these piers could not have been erected in such place and in such a manner as not to injure the navigation. Besides, the condition was plainly expressed : it involved no ambiguity or repugnancy, either in the words of the statute, or arising out of its practical operation. In this case however, the manifest purpose of the legislature was to authorize the West Branch Boom Company to stop all lumber marked for their boom. ‘ The defendants allege that to do this and to comply with the provisions of the saving clause contained in the 2d and 7th sections, in any literal or strict sense, involves a practical and palpable absurdity, and that it is not probable the legislature intended the language of this proviso to be read in that sense. They contend that the saving clause to the 7th section, which provides that “No lumber of any description shall be stopped except upon the written request,” etc., does not apply to the mere temporary detention of the logs, until the marks can be seen and their destination determined. — 160 — Private charters, as we have said, are to be strictly construed,' but when the commonwealth grants a public franchise over a highway, a clause, relative to the manner in which such franchise shall be exercised, will not be construed so as to defeat the grant: Whitaker v. Del. & H. Canal Co., 87 Pa. 34. In the case cited, a corporation was authorized by its charter to construct a dam in a river, “provided that the same shall be so constructed as to leave the channel of said river as safe and convenient for the descent of rafts as it now is.” “ The plaintiff complains,” says our late brother Trtjnkey, in the opinion of the court in that case, “that the river is not as safe and convenient for navigation as before the erection of the dam. Unquestionably this is so. A dam in a stream is an impediment, and in some degree renders its navigation less safe and convenient. A literal construction of this provision makes it impossible to build and maintain the dam, and the conceded right vanishes.....Various statutes have been from time to time enacted authorizing public improvements, some of which would obstruct or impede the navigation of rivers, and others the use of streets and roads, which contained provisions forbidding such obstructions and impediments. The courts have uniformly held that these provisions should be liberally construed so as not to destroy the grant.” In support of this principle are cited Monongahela Bridge Co. v. Kirk, 46 Pa. 112 and Commonwealth v. Erie & N. E. R. Co., 27 Pa. 365. In the former case the charter of the company provided, that nothing therein contained should authorize the erection of a bridge over the Monongahela river “in such manner as to injure, stop or interrupt the navigation of the river by boats, rafts or other vessels.” It was held that the proviso was not intended to prevent the erection of piers in the bed -of the river. Although piers in the bed of a navigable stream inevitably injure navigation and render it more difficult, they do not necessarily “injure, stop or interrupt the navigation ” in the sense in which these words were used by the legislature. A strict, literal meaning was not intended, and in the very nature of the case it never could have been. When the purpose of the franchise is the performance of a public act, the grant is to be so interpreted as to enable the act to be done. “ The general rule,” says Mr. Justice Read, “undoubtedly is, that — 161 — charters of incorporation of private companies are to be construed strictly in favor of the commonwealth — so are grants to any persons — but they are to be construed reasonably. It is very clear that when the purpose of the franchise is the performance of a public act, the grant is to be interpreted so as to enable the act to be done. The act for the provision so made in this charter was a public one. It was the extension of one highway over another. Nor was the erection of the bridge less the performance of a public function, because the agent was empowered to exact tolls from passengers. The legislature is not to be supposed to have authorized and prohibited such a public act, at the same time and by the same charter; a grant of power to erect a public bridge is not to be construed so as to make its erection impossible, and such a construction justified by the rule that private charters are to be strictly interpreted.” In the case of the Commonwealth v. E. & N. E. R. Co., 27 Pa. 365, the charter of the railroad company had a provision in it, that the railroad “ should be so constructed as not to impede or obstruct the free use of any public road, street, lane or bridge now laid out, open or built.” Chief Justice Black, in the opinion of the court rendered in that case, says: “And another objection to this location is more grave, because it bases itself on a provision in the act of incorporation. It is said that the streets would be less obstructed by taking the road down to the harbor, than by locating it where the defendants propose. The company is forbidden to make the road so as to obstruct or impede the free use of any street. These words taken literally and in their strongest sense, would prevent the railroad from being made on the streets at all. But we followed authority in saying they were not to be so interpreted.” But the rule of construction applicable here would seem to have been settled by the judgment of this court in the unreported case of the Susquehanna Boom Co. v. The West Branch Boom Co., argued at the January Term, 1877. The proviso to the 2d section, as we have said, provides “ That the said booms shall not extend more than half way across the river and be so constructed as to admit the safe passage of rafts, boats, logs, masts, spars or other lumber, and not impede the navigation of said river and branches thereof.” Whilst — 162 — the permanent portion of the boom structures was on the south side and did not extend more than half way across the stream, yet the company swung the shear from the north side of the river, and when the shear was closed the entire stream was for the time obstructed. The Susquehanna Boom Company thereupon filed a bill in equity in this court praying that the West Branch Boom Company might be enjoined from maintaining the shear; on full consideration, however, the bill was dismissed. Our brother Gordon in delivering the opinion of the court said: “ Whether the defendant has the right to the use of the shear by which, at least occasionally and for a short time, logs intended for the' Susquehanna boom must be stopped, depends altogether upon the powers conferred upon it by its charter; beyond this it cannot go; it must abide by what is written therein or what arises therefrom by necessary implication......A literal construction of this proviso utterly defeats the grant, for as we have seen the boom without a shear, and that from the north side, is worthless; but more than this, if the boom itself must be so constructed as to allow the passage of boats, rafts and lumber through it, it is wholly worthless, since in that case it would hold nothing. This however, will not do, for a proviso in a grant for a public franchise cannot be allowed to defeat the grant itself: Whitaker v. Canal Co., 87 Pa. 34. . ......We are brought to the conclusion, which, after much examination and thought, we regard as inevitable, that the defendant had the right under its charter to maintain and use the shear which it did have and use at the time of the filing of this bill. Without such a structure the franchise itself is valueless; neither can the corporation answer the purposes of its creation nor perform the duties imposed upon it by the act of incorporation. It must therefore have its shear booms, and of course it must use them in accordance with the terms of the statute. The act has made ample provision for a free and unobstructed navigation, and for the earliest possible transmission of lumber necessarily lodged within the booms, and if in this or any other particular the defendant neglects or fails to perform its duty, it is answerable for any damages arising from such neglect or failure.” These cases show conclusively that we are not to adhere strictly to a literal construction of this charter, if by so doing — 163 — we defeat the public purpose to be subserved thereby; the provisos are to be construed so, as not to defeat the grant itself. The swinging of the boom from the north side assumes the power of the corporation for some purposes over the whole width of the river; and the right to use the shear, and to stop their own logs driven indiscriminately with the logs of others, assumes the right, under the circumstances stated in the offer, to stop the mixed mass of logs for the shortest time reasonably necessary, by the use of the utmost diligence and skill, to withdraw from that mass their own logs. To decide otherwise would be to defeat the very purpose which the legislature had in view. That this was the actual legislative intent, however, is manifest upon a careful reading of the proviso to the 7th section. It is provided that “ no lumber of any description shall be stopped except upon the written request of the owner or owners of the same.” Now it is plain that the stopping referred to here, is not a mere temporary interruption of the progress of the logs for the purpose mentioned, but a stopping of the logs as at the place of their destination at the request of the owner. Further, it is provided “ that no toll or expense shall accrue to any lumber, designed to .run or to be driven to any point below Lock Haven.” If it was contemplated that such lumber was not under any circumstances to be stopped in the West Branch boom, how could any toll or expense accrue upon it ? Assuming, however, that this class of lumber might and probably would at times come within the inclosure of this boom, it was reasonable and proper, conceding the right to interrupt its passage temporarily and for a lawful purpose, to make provision that there should be no toll or expense charged for turning it out. But it is said that the identical question now under discussion was decided otherwise in West Branch Boom Co. v. Dodge, 31 Pa. 285. What the precise facts in that case were does not appear ; it was an action on the case for the detention of a quantity of saw logs which ran into the defendants’ boom in the spring of 1852. The jury found a verdict for the plaintiffs by consent, subject to the opinion of the court whether in law the plaintiffs were entitled to recover. Under what circumstances, for what purpose, or for what length of — 164 — time, the logs were detained, does not appear in the report of the case. The opinion may or may not be in conflict with the views here expressed; that depends wholly upon, the facts upon which it is based. .There are some general expressions contained in it, which might appear to be in conflict, not only with the rulings in this case, but with Susquehanna Boom Co. v. West Branch Boom Co., already referred to. These expressions, however, may be made with reference to a state of facts wholly different from the facts in this case, or in the case mentioned. However this may be, we are well satisfied that the construction we have given to this charter is the reasonable and proper one, and that it is in conformity with the' rule now recognized in this state. If the facts set forth in the offer are established by the proofs, it follows, that the defendants in stopping the plaintiffs’ logs, under the circumstances and for the purposes stated, were exercising powers conferred by their charter, and for any negligent performance of these powers, would be answerable only according to the provisions of the charter: Bald Eagle Boom Co. v. Sanderson, 81* Pa. 402. The judgment is reversed and a venire facias de novo awarded.