Northern tribune. [volume] (Cheboygan, Mich.) 1875-1885, 1885-02-12
NORTHERN TRIBUNE.
THURSDAY. FEBRUARY IL, 1885.
A Decision of Interest to Loggers.


In the Michigan supreme court in jan
uary last an opinion was filed by Justice
Sherwood In the case of Clifford vs.. Me-
Arthur, error to Cheboygan. which is Of
general interest to lumbermen. and the
text Of the same is given herewith.
The plaintiffs were partners and own
0rs OF certain steam tug, and were en-
gagged during the season of 1883 in tow
ing logs aud doing other tug work on
Burt Lake, Indian River and Mullet Lake,
which are navigabls waters, the lakes
being connected by the river, which Is
about six miles long. On the 4th of May
that year the defendants, Nelson, Smith
and Bailey had each drive of logs in
the river in the order named, commence
ing at Burt Lake, and each party had q
boom stretched across the river at the
end OF his drive. and the defendants had
one also ut the end of their drive and
Just abOys the mouth Of Sturgeon River,
kept there to enable Nelson to run his
logs out of the Sturgeon into Indian riv-
or. On May 4, 1888. plaintiffs desired to
take the tug through to Mullet Lake,
where they had work engaged for her,
and requested defendants to open their
boom and allow the boat to pass down to
the lake. This defendants refused to do,
and thrsatsHsd plaintiffs If they attempt
cd to remove the boom, and prevented
them from gOing further down the river.
PlaiAtiffs claim that in consequences of
such refusal, and the obstruction TO nav
igation, they were deprived OF the use of
their boat five and One-half days, to their
great damage, and for the recovery of
which this action was brought. To the
plaintiffs declaration the defendants
plsad the general issue. Atrial was had
at the ChsbOygan circuit, by jury before
Judge Ramsdsll, and q recovery of $50
was obtained for the plaintiffs. All the
testimony is returned in the bill Of ex-
captions. Two Of the exceptions taken
to the rulings Of the court were on the
admissibility Of the testimony. l do not
think these rulings are open to the crit
ieism made by defendants counsel, and
the court committed no elr0r in Overrul-
ing them. The circuit judge in his in
structiOns to the jury stated that the
Indian River is \ public highway, ia
which all persons have equal rights to
pass and repass and to navigate tho
same; that the plaintiffs could not die
tate to the defendants. nor fix the line
where they might enter that stream. and
that the rights Of defendants are equal
to those Of the plaintiffs. Each person
has the right to the legitimate use of the
stream. using reasonable care, and
though he Numerically impede or OBJ
struet another temporarily, ne action
can DO maintained. If defendants logs
were detained in the stream by reason
Of Nelson, Thompson Smiths and Bail
sy's logs being in the stream ahead Of
them, blocking the river, and defendants
moved their logs as soou az they reason
ably could after the obstruction Of other
logs was removed, no action can be main
tanned. No man can be punished In dam
| ages for an enjoyment OF his undOubted
rights, when he acts reasonably and with
prudence. The injury must be coupled
with wrong, and il the act be not un-
lawful in itself, then, unless done in a
manner, at time, or under circum-
stances which render it wrongful, there
can be no liability for any Injury that
ry find for the plaintiffs actual damages
by the detention as appears from the ev-
idsnos."
The court also charged that "the de-
PENDANTS had no greater right to cut the
booms holding the logs Of Nelson and
Bailsv than the plaintiffs had. and uR-
less the defendants by some force or
means prevented him doing so, the de-
PENDANTS by some force or means pre-
vented them doing 80, the defendants are
not liable for the detention caused by
Nelson and Bailey's logs and booms.'
The exception to this last charge was
not we'll taken. 1t was proper under the
testimony contained in the record. There
was testimony tending to show that had
the defendants boom been opened and
the tug allowed to pass it would have
made its way through in few hours
and there is no testimony showing that
if the defendants had allowed tho tug tt
pass their boOns those below would moi
have been opened fer it.
Defendants further asked the court tt
charge that "if the jury find frOm.the ev
dsnes that the plaintiffs aided the dc
PENDANTS, by the ass of their tug an(
men, in filling the stream with logs ant
creating the obstruction complained of
the plaintiffs have no right of action
and the verdict should be for defend
ants" This was refused, and the cour
stated that "the evidence is, the plain
tiffs were employed by the defendants
and while 20 employed put the logs II
the river by the order ald direction 0
the defendants. The putting In was law
full" To this refusal and to this state
ment of the court exception was taksI
There was no error committed in thi
ruling. The wrong, If any, Twas not 4
the defendants placing the logs in tn
river, which they had the right to d,
and those who assisted committed n
unlawful act. The wrong complaine
of is the placing Of the boom across tn
river in such q manner AZ to Obstrut
the same and prevent the passage {
plaintiffs' tug, to their injury. This II
defendants could not do without incur
] ring liability.