Pickens v. Coal River Boom Co.

65 S.E. 865, 66 W. Va. 10, 1909 W. Va. LEXIS 117

• Court: West Virginia Supreme Court
• Decided: May 4, 1909
• Status: Published

Opinions

Brannon, Judge:

Boman Pickens brought an action against the Coal Eiver Boom & Timber Company and the Coal Eiver Boom & Driving Company, both corporations, to recover damage for injury to his mill on Coal river, claiming that the works of the Boom Company on the stream below his mill stopped the outflow of sand and .other sediment and caused them to rest in large quantities in the stream, and lessened the fall of the water over his dam, and thus lessened the grinding capacity of his mill. He recovered verdict and judgment for seven thousand dollars, and the Driving Company appeals.

This is a second action for damage from the same cause. The character of the case is just the same as that of the former action, which twice came to> this Court. Eeports of decisions in that action will be found in Pickens v. Boom & Timber Co., 51 W. Va. 445, and 58 Id. 11, rendering it needless to repeat the facts, as they are the same involved in the present case.

Does this boom, if damaging the mill by operation upon the water power, give Pickens action? The boom right rests upon a state charter. Does that charter give immunity from action by Pickens? We think that former decisions of this Court upon the same and similar facts answer this question in the affirmative The two decisions just cited do so. In Rogers v. Coal River Boom Co., 39 W. Va. 272, it was held that where damage comes from erection of piers for a boom in a river by construction of cribs of logs and filling them with stone, and using them to catch and hold logs, resulting in causing the current to flow against and injure the bank of a riparian owner, an action lies for him. It was again so ‘held in Rogers v. Coal River Co., 41 W. Va. 593. Upon such facts we have decided that liability rests upon the boom company, and we must ' say so as matter of stare decisis. Indeed, it is admitted that the boom company is the same as that involved in the former action of Pickens, and also in the two other cases cited. We do not say that the former suit of Pickens is res judicata in this case, because it is' not pleaded or give» in evidence. We have a statute which allows the court to read and use, on hearing a second appeal or writ of error in the same case, the record of a former appeal or writ of error. But that statute does not apply in this case, since this is a writ of error in a second action, and we cannot use the record of the former action as res judicata. True, the Driving Company is lessee of the Boom Company and privy in estate with the latter company; but whilst judgments bind the parties and their privies, privies to be so bound must get their rights from parties after the judgment, and those having fights before the judgment are not bound. Maxwell v. Leeson, 50 W. Va. 361. The’ Driving Company acquired its right from the Boom Company before the judgment, and for that reason we cannot hold it res judicata against the former, as we could, if it had acquired its rights after the judgment, though not a party. But another reason why we cannot say that the former judgment is res judicata against the Driving Company is, that it is not pleaded. Judicial notice will not be taken in one suit of the proceedings in a separate suit, whether in the same or another court. The record must be either pleaded or given in evidence. United States v. Bliss, 172 U. S. 326. Many authorities say this. We do not here discuss the question whether, to have effect, the record of the former judgment must be pleaded or may be given in evidence. As I have said we do not use the former judgment as res judicata; but we say that upon the facts of this case and the principles announced in our former decisions of Pickens v. Boom Co. and Rogers v. Boom Co., the liability upon the defendants is fixed and settled on principles, not of res judicata, but stare decisis.. But if it were an open question, we think that the' liability exists. Criticism has been made upon the calling of this boom an unlawful nuisance in 51 W. Va. 445. This criticism seems to import that counsel think.that if the boom cannot be denominated a nuisance, its erection and operation cannot give Pickens right of action. It is said that the grant of the boom charter under legislative authority purges it of the character of nuisance. It has seemed to me that this criticism is not exact and the matter immaterial. There are two classes of nuisances, public and private. A nuisance is public when affecting wrongfully the public generally, and private when affecting only certain individuals. There is no difference between these two kinds of nuisance, except as they affect the public or only certain individuals. The nature of the thing doing injury is the same. 29 Cyc. 1152; 21 Am. & Eng. Ency. L. 682. But for the charter the boom would be a public nuisance; but that makes it a lawful structure as to the state and the public. The state or an individual cannot abate it as a public nuisance, it cannot be indicted as a nuisance. Crenshaw v. Slate River Co., 6 Rand. 245; Watts v. Railroad, 39 W. Va. 198; State v. Elk Island Boom Co., 41 Id. 796. An individual affected by a private nuisance may peaceably abate it. 1 Am. & Eng. Ency. L. 79. But he cannot do so if the work is under charter rights. To this extent.only does the charter qualify the work as a private nuisance. The thing is still a private nuisance as to the individual. The charter has not made it further a lawful-thing than exempting it from abatement. It is a private nuisance still, if of a nature to be such, just as if no charter had been granted. If it hurts the individual, it is actionable because a nuisance. It will be seen in the books that even railroads are often so called, when doing damage. If without charter it would be an actionable nuisance, the charter does not change its nature. But what is the difference whether we call it a nuisance or not. “Nuisances always arise from unlawful acts. That which is lawfid. can never be a nuisance. Therefore, where the legislature, by an act that it is competent for it to enact, authorizes an act to be done, which would otherwise be a nuisance, the act is made lawful and is not a nuisance, so far as the public is concerned, unless the power given by the legislature is exceeded.” Wood on Nuisances, Vol. 1, p. 2, note. Note the words “so far as the public is concerned.” Charter does not exempt it from liability to private property. A lucid and strong case in this connection is Trenton Water Power Co. v. Raff, 36 N. J. L. 335, a corporation authorized by law built a bridge across the Delaware river at a point below whee Jacob’s creek enters it. The plaintiff owned a mill dam up that creek. The defendant’s dam backed the water and injured the plaintiff’s dam. The court held in an elaborate opinion that the plaintiff was entitled to the natural descent of the water and that the unobstructed flow was a part of his freehold as much as the- title to the soil, of which the owner could not be deprived without his consent or compensation. It held that, “An action will lie to recover damages for an injury to property in the execution of work under legislative authority, if the injury be direct, or the work be done for the benefit of an individual or corporation with private capital, and for private emolument, even though the public be incidentally benefitted by it. An act of the legislature, authorizing one to erect a dam in a river which is a public highway, may be a justification so far as public interests are concerned, but will be no justification for a private injury, caused by the overflow of land of an individual proprietor. The legislature cannot deprive an individual of the advantages of a stream of water in its natural flow over his lands, or create an easement in his lands of the right to overflow, wthout providing compensation for the injury.” The court distinctly said that such charter would exempt from indictment or any action for infringing public right, “but will be no justification for a private injury caused by the overflow of the land of an individual proprietor,” citing many cases. It is not an open question anywhere, especially in West Virginia, under our decisions, that though a corporation have a charter for its work, yet it is liable for damaging private property. Even by the general law of Europe and the common law of England, coming with our fathers to America, “it was a qualification of the right of eminent domain that compensation should be made for property taken or sacrificed for public use and the American constitutions were intended to establish this principle beyond legislative control.” Pumpelly v. Green Bay Co., 13 Wallace 166, Our constitution says that private property can neither be taken nor damaged for public use without compensation. Many of our decisions bold that railroad and other corporations, though chartered, are liable for damaging private property. On what other basis can we justify such cases as Mason v. Bridge Co., 17 W. Va. 396, and Spencer v. Railroad, 23 Id. 406, and Smith v. R. R. Co., Id. 451, and many other cases? The Legislature cannot, by charter, exempt a corporation from liability fox damage to private property, because the constitution forbids it to do so. In my judgment this would be so, as a general proposition. If it be said, if it can be said, that mill rights are subject to impairment or destruction by grant of right to improve navigation for the reason stated by myself in Pickens v. Boom Co., 51 W. Va. 445, that such reservation’ was made by the statute under which mill rights are granted and, therefore, a boom right would have precedence over the mill right, and injury to a mill would not be actionable; then I say that'the boom act in section 28 saves right to mill owners to> sue for damages. It was intended to give right of action to mill owners and others injured by the exercise of the boom rights, as we held in Rogers v. Coal River Boom & Driving Co., 39 W. Va. 272. What other purpose can we assign to section 28 of the boom act saying, “That nothing in this act shall be so construed as to deprive the owners of any mill property, or any other proprietors on said river and branches thereof, from recovering damages for injury to their property by said corporation”? Notice that mill owners are here specifically mentioned. That means that if, without that section, the mill owners could not sue, they are placed in the same line with other property owners by this saving, which means that they may sue just as any other property owner can. The Legislature intended to ignore the condition named in the mill act subordinating rights of mill owners to the rights of navigation. It intended that notwithstanding this the boom company should be liable to mill owners for damages. The Legislature by that section treated them as having rights and intended to save those rights from damages by boom companies organized under the boom act; intended to place them on the same plane and with the same right as other riparian owners, because it specially mentioned them along with other property owners and accorded them the same right of suit. In my judgment this is too plain to admit of controversy. I discuss this matter in Pickens v. Boom Co., 51 W. Va. pp. 454-5. If there be a damage to- mill or other property I think it exists without the element of negligence on the part of the boom company under the paramount force of our constitution saving private property from damage for public use- without compensation. Is the party damaged? That is the test.

The statute of limitation of live years is pleaded in this case. This suit was brought to recover damages from 21st December, 1899, to 21st December, 1904, five years immediately preceding the institution of the suit. The contention on the side of that plea is, that as the boom had been constructed long prior to 21st December, 1899, the statute began to run from the date of the construction of the boom and thus recovery is barred. Upon principles stated in Rogers v. Boom Co., 39 W. Va. 272, and Pickens v. Boom Co., 51 Id. 445, this plea is inadmissible. Its theory is that the boom is a structure of permanence and that any damage from it is permanent and the right of suit is for past and prospective damage, and but one suit can be maintained, and that th&re must be recovery once for all. Our holding in Pickens v. Boom Co. and Rogers v. Boom Co. that the damages are continuous and recurrent, and repeated suits may be maintained as damage goes on, is assailed and we are asked to overrule those former cases in this respect, because unsound. But we think that holding is supported by much authority in this and other states. Hargrave v. Kimberly, 26 W. Va. 787; Watts v. R. R. Co. 39 Id. 196; Henry v. Railroad, 40 Id. 234; Eels v. Railroad, 49 Id. 65; Rogers v. Boom Co., 39 Id. 272. We cite authority from other states. Prentiss v. Wood, 132 Mass. 486; Baldwin v. Caukins, 10 Wendell 165; Chicago &c. Co. v. Andreesen, 62 Neb. 456; Omaha &c. Co. v. Standen, 22 Id. 343; Miller v. Keokuck R. Co., 63 Iowa 680; St. L. R. Co. v. Biggs, (Ark.) 20 Am. St. R. 174; Hempsted v. Cargill, 46 Minn. 118; N. Y. &c R. Co. v. Hamlet Hay Co., 149 Ind. 344; Chicago &c. Co. v. Emmert, 73 N. W. 540. In Ridley v. Railroad, 118 N. C. p. 998, the rule is stated thus: “The right to recover prospective as well as existing damages in an action depends usually upon the answer to the test question, whether the whole injury results from the original tortious act or from the wrongful continuance of the state of facts produced by these acts," citing Troy v. Chesshire R. Co., 3 Foster 83. In St. L. R. Co. v. Biggs, 20 Am. St. R. 176, is a well considered note upon this subject. “The authorities agree that when the original act creating a nuisance to land is permanent in its nature, and is at once productive of all the damage which can ever result .from it, and at once destroys the estate for all practical purposes, so that when the act is completed all the damage that can be effected thereby is consummated, the entire damages must be recovered in one action, and the statute of limitations begins to run against the cause of action from the time of the complete erection of the nuisance.” Many cases are cited. We cannot say in this case that all damages came at once, but they came and increased as time progressed. The cause continued operative and working damage, in all probability and as the evidence tends to show, increasing damage from increasing time. The defect of power in the mill preventing its full grinding capacity year after year, and growing, the damage continuing. In Culver v. Chicago R. Co., 38 Mo. App. 130, it is said that the statute does not begin to run for flowage of land until it occurs, although it may have been growing and working for a length of time beyond the period of limitation. We cannot say that Pickeh’s damage started with the construction of this boom. It was miles below, and' we know from our own knowledge of the action of streams, and under the evidence, that it took time to deposit such great amount of sand through miles of the river to work harm to Pickens. As time went on the damage went on and increased. We do not test the matter only by the permanent ot impermanent character of the structure, but by the damage. Does it all occur at once or come occasionally or as time goes on? If the structure is temporary, the damage is not regarded as permanent; but though the structure is to stand forever, yet if the harm comes occasionally or grows, the damage is recurrent and recovery is not limited to one action, as the permanent bridge in Eels v. Railroad, 49 W. Va. 65. But why should we further discuss or refer to these authorities when our former decisions have settled this matter ?

For use I cite cases illustrating permanent damages. Virginia Hot Springs v. McCray, 6 S. E. 217; Gwin v. Railroad, 46 W. Va. 151; Smith v. Railroad, 23 Id. 451; Battrell v. Railroad, 34 Id. 237.

We have examined the instructions and we find no error therein, or in. evidence admitted. It is useless, as the case is not to be remanded, to discuss these matters. The discussion of the principles above stated in the-former decisions apply to this.

Former decisions above given rule this case and require us to affirm the judgment.

Affirmed.