Anderson v. Munch

Mitchell, J. The defendant constructed, maintained, and operated a “sluice-dam” across Snake river, in Pine county, under a license of the board of county commissioners of that county, granted pursuant to the provisions of Gen. St. 1868, c. 32, tit. 8. The plaintiff brought this action against the defendant to recover damages sustained by the alleged failure of the defendant to perform her duty in regard to the sluicing of plaintiff’s logs through the dam. The court below ordered judgment for defendant upon the pleadings, and from that judgment plaintiff appeals. As we understand and interpret the pleadings, no fault is found with the construction, management, or operation of the dam by the defendant, but the complaint is that the defendant did not perform the manual labor of conducting or driving plaintiff’s logs through this sluice-dam. There being no contract between the parties in relation to the matter, the simple question is, was the defendant required to do so under the statute ? We think not. The nature and purpose of a sluice-dam is clearly indicated by the statute. It is for the purpose of utilizing the water of a stream by raising a head sufficient to float logs and lumber over obstructions and shoal places down to the dam; and then, by letting it out, flood the stream below so as to carry the logs down to their destination. It is constructed with a sluice-way, or opening, for the [417] passage of logs. When logs are not passing,1 it is closed to collect the water above; and, when logs come down and are desired to be passed through, it is opened to let them out, together with sufficient water to carry them down stream. The owner of the dam has nothing to do with the handling of the logs. Hé simply operates the dam. The logs are never in his possession, and he has no control over them, except by virtue of a lien for tolls,'; It is not like a boom. The object is simply to facilitate the driving of the logs by their ownei’, and enable him to get them over rapids and shoal places. He has charge of his own logs all the time, and'must himself drive them into and through the sluice-dam, as well as down the stream below. The operation of the dam, about which the county commissioners may impose “further special conditions,” consists in controlling the water by means of the dam and in opening the sluice-way for the passage of logs when wanted. “Tó sluice” and “sluicing,” as used in the statute, so far as applied to the owner of the dam', mean simply opening the gates or sluice-way for logs, lumber, and timber. The words “sluice” and “sluicing” are used in this sense, and not in the sense of applying manual labor upon the logs or timber in driving them through the sluice. The owner of the dam has no more to do with this than has the keeper of a -toll-gate with leading or driving cattle or teams through the gate. The statute, therefore, in our judgment, affords no .support to the plaintiff’s cause of action. It is contended, however, that the conditions of the bond given by defendant to the board of county commissioners obligate her to perform the labor of driving the logs through the sluice-way. The clause in the bond mainly relied upon, — to wit, “that she will sluice, or cause to be sluiced, any and all logs, lumber, or timber, with all reasonable dispatch,” — may, we think, be construed so as to accord with the statute, and as importing no more than that she will operate the dam so as to allow the passage of all logs, etc., with reasonable diligence. But, if it assumes to obligate the defendant to drive the logs through the sluice-way, it is a condition which the county commissioners had no more right to impose upon defendant than they had to require the log-owner to pay toll before his logs were sluiced. The county board had ho power to require or take a bond which required [418] the performance of anything not appertaining to the construction, maintenance, and operation of the dam. Interpreted as plaintiff claims, it would not be a statutory condition, and could not, therefore, inure to his benefit. The case does not present the question of the validity of a bond similarly conditioned to that required by statute, but not executed in the manner or form required by law. Such bonds have been often held good as common-law obligations, although defective in form as statutory bonds. But it would be a case of a statutory bond, with a condition superadded to those required or authorized by statute, and which must, therefore, be rejected as void and illegal. Polk v. Plummer, 21 Tenn. (2 Humph.) 500; United States v. Bradley, 10 Peters, 343. Judgment affirmed.