Lammers v. Brennan

By the Court. The acts stated in the complaint, to which a demurrer was interposed, consisted of wrongful obstructions of the channel of the Grindstone river, — a stream navigable for logs, — by refuse matter thrown into the stream by the deceased in the years from 2885 to 1888, both inclusive, whereby the channel was so obstructed that the logs could not be floated down except at very unusual stages of water. During the period above stated the appellant was engaged in cutting logs on lands situate on and near this river, above the obstructions, and in driving them down this stream and into the Kettle river, of which it is a tributary, pursuant to contracts with the owners [211] of such lands, whereby he obligated himself so to do. In driving the logs he necessarily encountered the obstructions complained of, and was thereby greatly hindered and delayed and subjected to great expense, suffering damage in the sum of $5,000, as is alleged. It further appears that this stream was the only highway over which the plaintiff could take the logs to their destination. The learned judge of the district court sustained the demurrer to the complaint, considering that the decision in Swanson v. Miss., etc., Boom Co., 42 Minn. 532, (44 N. W. Rep. 986,) was decisive against the plaintiff, and we are of the same- opinion. If it had appeared that after the plaintiff had become obligated by contract to drive logs down this stream, and before the performance of his contract, the defendant had created obstructions causing special injury to the. plaintiff in performing his contract obligation, a different case would have been presented. Whether that would have justified a private action for damages we -do not decide, for we do not understand that such a case is stated in the complaint. The contracts under which the plaintiff’s logging operations were carried on may have been made each year, and it may be that no obstructions were created between the time when any contract was made and the time of its performance. If the appellant, after the creation of the obstruction complained of, and with knowledge of it, voluntarily entered into contracts to drive logs down this stream, the case is not distinguishable in principle from that above cited. It may be added that the further allegations of the complaint, to the effect that it has become necessary for the appellant to remove the obstructions in order to restore the navigability of the stream, and to enable him to perform his contracts, do not show such injury actually suffered as will justify an action for the recovery of damages. Shero v. Cary, 35 Minn. 423, (29 N. W. Rep. 58.) Order affirmed.