Brown v. Leppo

Mr. Justice Higbee delivered the opinion of the court. 2. Master and servant, § 836*—when doctrine of respondeat superior applies to action for flooding lands. One who purchases standing timber to be cut and removed- is answerable, under the doctrine of respondeat superior, for injuries caused an adjoining landowner from the obstruction of a stream by brush and tree tops cast into it by men employed by the defendant to cut the timber into saw logs, ties, etc., for a compensation to be determined by the amount cut by them. 3. Master and servant, § 856*—who are independent contractors. Men are employed, not for any fixed time, to cut and remove standing timber, held not independent contractors where they are paid according to the amount of timber they produce. 4. Waters and water courses, § 31*—instructions in action for flooding land. An instruction in an action for injuries sustained from the overflow of a stream from the obstruction thereof by brush and tree tops cast into it in lumbering operations, held not to assume that those who caused the obstruction were the servants or employees of the defendant where the instruction in fact left that question to the jury. 5. Waters and water courses, § 31*—instruction as to contributory negligence in action for flooding land. A requested instruction held properly denied, in an action against those cutting and removing timber, for damages to adjoining land from brush and tree tops being deposited in a stream so as to cause an obstruction, to the effect that if the plaintiff did not take steps to compel the owner of the land to remove the obstruction he was guilty of negligence contributing to his injury which would preclude a recovery, since it -tended to raise a false issue. 6. Waters and water courses, § 26*—when notice to remove obstruction from stream condition precedent to action for flooding land. The doctrine that there can be no recovery for the continuance of a nuisance erected by one on his own land, without a previous request or notice to remove it, does not apply to an action against persons other than a landowner, who cut and removed timber from land and obstructed a stream in doing so, to the injury of an adjoining landowner.