Hunter v. Grande Ronde Lumber Co.

Mr. Justice Wolverton delivered the opinion. The plaintiff is the owner of certain lands through which the Grande Ronde River, a natural watercourse, flows, and she charges by her complaint that defendant well knew the character and capacity of said river for floating logs, and that their transportation therein required great care and skill to prevent them from being carried upon the adjoining lands, but that, notwithstanding such knowledge, it did, on or about February, 1898, wrongfully and negligently place in such river a greater number of logs than could be floated thereby, and did also wrongfully and carelessly fail, neglect, and refuse to keep the channel clear and open, oi* to prevent the logs from forming jams, or to break the jams thus formed [450] within the stream along the lands of the plaintiff, and so negligently, carelessly, and unskillfully • banked and drove said logs down the stream that they dammed it up, thereby causing the water thereof to overflow its banks, ■and flood plaintiff’s lands, washing thereon a large number of said logs and great quantities of sand, gravel, driftwood, and other debris, to her damage. The answer puts in issue all these allegations, and sets up affirmatively that the Grande Ronde River is a natural watercourse of suitable capacity for floating of logs during the winter and spring months of each year, and “that logs placed upon the banks of said stream and in the channel thereof upon the lands described in plaintiff’s complaint were placed there under parol license, and with the full knowledge, consent, and approval of the plaintiff and her agents, and at all of the times mentioned in plaintiff’s complaint plaintiff well knew the quantity of logs in said pile, as well as the character of said stream, and that said logs could only be floated down the channel of said stream after the ice was out of the channel thereof. Therefore plaintiff is, and ought to be, estopped from claiming damages on.account thereof.” A denial of these allegations on the part of the plaintiff completed the issues in the cause. The verdict and judgment being for plaintiff upon the trial thereof, the defendant appeals. 1. At the trial of the cause the court adopted the theory that negligence was not a necessary element of plaintiff’s case, and refused to instruct the jury, at the request of the defendant, that, before she could recover, she must establish the fact that defendant was guilty of negligence in piling the logs within or running the same down the channel of the stream. In doing this the court has followed the reasoning employed in Haines v. Welch, 14 Or. 319 (12 Pac. 502). We are satisfied, however, [451] after careful consideration, that the doctrine of that case is unsound. Nor is it sanctioned by the later case of Haines v. Hall, 17 Or. 165 (20 Pac. 831, 3 L. R. A. 609). .By the latter it was determined that Anthony Creek— the same stream involved in the former — was not navigable for floating logs. That was the principal question litigated by the former; and the one involving the doctrine here adopted was only incidental, if it may be said to be within the issues. The right of the public to run logs in a floatable stream is concurrent with that of the riparian owner, and each is entitled to the reasonable enjoyment thereof, without unnecessary interference from the other. A reasonable enjoyment signifies such an exercise of the right as common prudence would dictate, so as not to affect correlative or concurrent rights injuriously. This requires care and circumspection in its exercise, and, if injury should be the proximate result of the want of care, liability would logically attach. But the exercise thereof with proper care and without negligence can entail no liability. If it were otherwise, any person using a stream for the purpose of floating logs would become an insurer or guarantor, and be bound at all hazards to guard the riparian owner against loss by reason of the presence of the logs in the stream, and their rights would at once cease to be concurrent; the right of the log owner’would subsist in subordination to and by permission of the riparian owner. Mr. Justice Graves says in White River Booming Co. v. Nelson, 45 Mich. 578, 582 (8 N. W. 909, 910), “There is no foundation anywhere for such a doctrine.” Ordinarily, if a person is engaged in a legitimate business, he can only be held liable to another for such injuries as result from negligence or want of ordinary care and prudence in the conduct and management thereof, and the rule has equal application to a log owner who is engaged in the exercise of his legiti [452] mate rights of running logs within a floatable watercourse. The gist of the plaintiff’s action, therefore, is negligence, and, until a case has been made upon that theory, she can not recover. Adjudications elsewhere to this purpose are practically uniform : White River Booming Co. v. Nelson, 45 Mich. 578, 582 (8 N. W. 909, 910); Carter v. Thurston, 58 N. H. 104 (42 Am. Rep. 584); Hopkins v. Butte Com'l Co. 13 Mont. 223 (33 Pac. 817, 40 Am. St. Rep. 438); Lawler v. Baring Boom Co. 56 Me. 443; Thunder Bay Booming Co. v. Speechly, 31 Mich. 336, 344 (18 Am. Rep. 184); Witheral v. Booming Co. 68 Mich. 48 (35 N. W. 758, 13 Am. St. Rep. 325); Field v. Apple River Log Driv. Co. 67 Wis. 569 (31 N. W. 17). 2. It is sought to estop the plaintiff from recovery by. the plea that the logs deposited upon the banks and in the stream upon the lands of the plaintiff were so deposited under a pai’ol license from the plaintiff. It may be premised that logs, other than those put in upon plaintiff’s lands, were being dxiven down at the same time. The plea does not go to the extent of alleging that plaintiff, either by herself or through her agents, supei'intended the placing of such logs ; and the evidexxce sought to be introduced to this purpose was, therefore, not competent, and properly disallowed. The license covers sxxch logs only as were deposited upon and within the stream upon the plaintiff’s lands, and none other, and, as set up, it simply extended to the defendant the privilege of banking and putting logs into the stx’eam upon the lands of the plaintiff without intendment of regulating the manner of doing the wox’k. This could not estop the plaintiff from recovery if the logs were so negligently banked and piled in the stream as to unnecessarily cause her damage. 3. There was much testimony offered by the defendant, the pui’pose of which was to show that it exercised [453] due care in banking and driving its logs, and that the cause of the overflow was a sudden, unexpected, and unusual rise of the water, for which defendant was not accountable. Due care was a matter susceptible of proof under the general issue : Kendig v. Overhulser, 58 Iowa, 195 (12 N. W. 264). 4. The conditions contributing to the plaintiff’s injury, over which defendant had no control, should, however, have been pleaded, and the proof offered in support thereof was properly excluded from the jury. These considerations reverse the judgment, and the cause will be remanded for such further proceedings as may seem proper. Reversed.