St. Paul daily globe., 1893-06-13
WATER FREE TO ALL,
Supreme Court Decision of
Vital Interest to Lum-
bermen.
Loggers Are Entitled to Use
Navigable Streams on
Equal Terms.
Page Brothers Win Their Ap-
peal Against a Lumber
Company.
Important Ruling Concerning g
a Company's Liability
for Accident.

An interesting decision, treating upon
the right of lumbermen to use naviga-
bic streams, was handed down by the
supreme court yesterday, and the court
below was reversed. The case was that
of E. T. Page and others. copartners as
Page Brothers, appellants, against The
| Mile LacS Lumber Company, respond
| entS.
| In the court below, where the plaint-
ifs rested their case upon the trial, the
Judge dismissed the same on the ground
that the testimony introduced was in
| sufficient to sustain action. A motion
| for new trial was afterwards denied,
| and the question involved came before
the appellant court upon a bill of excep-
tiOnS.
From this bill it appears that both
| parties had been engaged in numbering
| for several years on Rum river, stream
navigable for logs and timber. Both
| parties cut their logs on the upper
waters and drive them to their respect
| tive mills, there to be manufactured
| into lumber. The plaintiffs mill is at
AnOka, and the defendants seventy
five miles above, or at Melaca, SO that
the formers logs must be driven past
the point at which the latter takes his
logs from the stream, and the only prac-
tical way by which either could supply
their mills with logs is by driving them
down this stream.
The defendant constructed two dams
just above its mill, at distance of
about half-mile apart, to create pond
and slack water above each. In the
upper pond so created piers
off,I I,
piling and boom sticks. The
SawIogs had to pass the men doing the
sorting for the defendant. The result
was that all logs destined for point
further down the river were detained
and delayed. greatly 10 the damage of
the plaintiffs. The supreme court, in
its finding, relates as below, and Justice
Mitchell emphasizes the syllabus by
cOncurring and celebrating, that he did
SO especially because it was the only
highway open to the plaintiffs.
Entitled to Recover.
First-A nuisance, such as an unrea-
sonable and unnecessary obstruction Of
a navigaDle stream may be public in
its general effect upon the public, and
at the same time private as to those
individuals who suffer a special and
particular damage therefrom, distinct
and apart from the common injury.
Second-PerSonS using such streams
for the driving Of logs must do so with
due Difference to the rights of other
parties engaged in the same business.
and in most respects such streams are
governed by the same rules as are high
ways upon land.
Third-Plaintffs were engaged. in
driving logs of their own and, under
contract. logs belonging to other per-
sons. down a nayigable stream to their
own mill and to market, having to pass
through defendants mill ponds and 10y
Its mill. its boOms and sorting gaps.
There was testimony introduced upon
the trial tending to show that, by means
of its ponds and booms and the manner
in which its own logs were handled and
placed in storage booms, defendant
maintained nuisance in its mill ponds
and unreasOnably and unnecessarily OBJ
structed and delayed plaintiffs driving
operations. Held, that the latter had
shown specialinj juries. differing in kind,
not merely i'll degree or extent, from
those suffered by the general public,
and upon the evidence were entitled to
recover.
Liability for Accident,
James c. Wilson. as Administrator Of the Es-
tate of Snorri Benson, respondent, vs.
Northwestern Mutual Accident Associa-
ton, appellant. Order affirmed.
COLLINS, j.
Syllabus: First-Where an adminis-
traitor, with the implied consent of an
accident association, adopts and relies
upon the act of q third party who
has filed with such association
Of olo loi nf n
cidental killing of such administrators
intestate. member of the association,
the latter will not be allowed to defeat
a recovery upon the ground that it was
incumbent on the administrator to file
the proof himself, or that he could not,
with its implied consent, adopt as his
own that filed by such third party.
Second-Where a.certain alleged trade
or occupation is not mentioned at all in
manual CT classification prepared and
adopted by such an association, it is not
classed all non-inSurable.
Third Where an accident happens
and injuries result to member of such
an association, the certificate being in
the form of that held by plaintiffs in
teState, recovery cannot be defeated
on the ground OF voluntary exposure to
danger contemplated by the parties.
Nor is it good defense that the acci-
dent was caused by the mere careless
ness or negligence of the assured.
Fourth-Held, upon the evidence pro-
warranted in finding that the work in
which the assured was engaged when
fatally injured was part of til trade or
occupation OF a brickmaSon.
As to Public Roads.
Tuuri iI1otrop, of tbo L,,+oto
of Peter Liilstrom, deceased. respondent,
VS.. Northern Pacific Railroad Company,
appellant Order affirmed. COLLINS, j.
Syllabus. The rule laid down in
Kelly VS.. R'y Co., % Mlnn., 90, that
where road is openly and notoriously
used as highway by the public, and is
recognized by railway company as
such by permitting the public to cross
the track and by assuming to maintain
crossing at that point. it is immateral
that good road has not been legally
laid out or established; adhered to and
applied to the facts in this case.
2. In civil actions it is sufficient If
the evidence on the whole agrees with
and supports the hypothesis which it is
adduced to prove, and it is the duty of
the jury to decide according to the rea-
sonable probability of the truth.
Routine Rulings.
Charles N. Prouty. appellant. w. Morris L,
Hallowell Jr., ct al, copartners as NJ L.
Hallowel Il Co., ct al, respondents. Order
affirmed. COLLINS. j.
Syllabus. Application of the rule
that error cannot pc alleged upon irreg-
ularity or misconduct of the trial court
shown (on appeaD by any statement of
what took place at the trial contained in
the finding of fact or decision filed by
the trial judge.
2. The rule of the district court rela-
tive to the hearing of orders to show
cause upon affidayits. solely, has no ap-
pllcation on the trial or hearing of a pc
tition for the appointment Of a receiver
under the insolvency laws of this State.
The court upon the trial or hearing of
the petition should proceed upon the
merits, receiving such evidence as may
be pertinent without regard to the man
ner in which the alleged insolvent has
been brought into court.
.ts'%