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fails to show that there was any abuse or misuse in the present case. The stream in question is undoubtedly navigable for floating logs for a part of the year, and during that time the appellant, as well as others, may use it for that purpose. But that is not the case before us. The appellant was not attempting to float logs during the navigable season of the year, but was attempting to do so when the stream in its natural state would not float them. It sought to remedy this by creating unnatural conditions—by the creation of artificial freshets—which conditions damaged and destroyed the respondent's property. This was an abuse of the right of navigation, and for that an injunction would properly lie"': See, also, White v. Codd, 39 Wash. 14, 80 Pac. 836.

The storing of water by the appellant's splash dams will so frequently and continuously retard the natural flow of the stream as to seriously interfere with and damage valuable riparian rights of the respondent. The operation of its light and power plant will be entirely obstructed while the water is being detained and stored by the dam. We are therefore compelled to hold that the appellant cannot thus damage or interfere with respondent's riparian rights, which are property rights, without first making full compensation. The power of appropriation by condemnation has been conferred upon appellant so that it may, by an exercise of the right of eminent domain, take or damage the property and shore rights of riparian owners in a lawful manner, making full compensation 618 therefor. The legislature, in conferring authority to improve the river and create artificial freshets, did not delegate to appellant the right to take or damage the respondent's property and shore rights without compensation. Any statute having such a purpose in contemplation would be in contravention of article 1, section 16, of the state constitution and void. That the legislature never intended to violate the constitution by attempting to confer such authority is disclosed by Ballinger's Code, section 4388 (P. C., sec. 7121), which authorizes driving companies to appropriate, in proper condemnation proceedings, such property and shore rights of riparian owners, as it may need for its use as a public service corporation. The recent case of Kamm v. Normand, 50 Or. 9, 91 Pac. 448, 11 L. R. A., N. S., 290, directly in point on the question of law here involved. In that case the supreme court of Oregon uses the following language: "Nor can a stream, navigable in its natural condition at certain stages of the water, be made so at other times by artificial means, such as flooding and the like. No one has a right to store water, and then suddenly release the accumulation, and thus increase the natural volume of the stream, and overflow, injure or wash the adjoining banks, or otherwise interfere with the rights of riparian owners. The ri. parian proprietor is entitled to the enjoyment of the natural flow of the stream with no burden or hindrance imposed by artificial means."

In support of the above statement, the court cites and discusses a number of authorities, including Matthews v. Belfast Mfg. Co., 35 Wash. 662, 77 Pac. 1046, and Monroe Mill Co. v. Menzel, 35 Wash. 487, 102 Am. St. Rep. 905, 77 Pac. 813, 70 L. R. A. 272, decided by this court. It also distinguishes cases from Maine, Minnesota and Wisconsin some of which are cited by appellant.

The recent case of Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 Pac. 937, is in direct harmony with the views herein expressed. In State v. Superior Court, 48 Wash. 286, 93 Pac. 426, we, in certiorari proceedings, afterward sustained the holding of the trial judge that an appropriation of the right to erect splash dams and 619 create artificial freshets past lands of a riparian owner was an appropriation of private property for public use. There is no doubt but that all the rights and powers for which appellant contends have been conferred on it by statute, subject, however, to the condition that in the exercise of such rights and powers it cannot damage or take any of the property of riparian owners. If it wishes to damage or take such riparian rights for the public use, it is entitled to do so under an exercise of the power of eminent domain, unless such rights have been devoted to a prior public use.

The judgment is affirmed.
Hadley, C. J., Mount and Fullerton, JJ. concur.
Dunbar and Root, JJ., took no part.

A Stream may be Used in a Proper and Reasonable Manner for Floating Logs, although such use may interfere with other uses of the water by lower or adjacent proprietors; but if one exercises the right to float logs in an unwarranted and unreasonable manner, he will be answerable for resulting damages: See Pickens v. Coal River Boom etc. Co., 51 W. Va. 445, 90 Am. St. Rep. 819, and cases cited in the cross-reference note thereto.

The Right to Use a Stream for Navigation in Floating Timber extends only to the bed thereof, and not to a use or an appropriation of the banks: Smith v. Atkins, 110 Ky. 119, 96 Am. St. Rep. 424; Monroe Mill Co. v. Menzel, 35 Wash. 487, 102 Am. St. Rep. 905; Martin v. District Court, 37 Colo. 110, 123 Am. St. Rep. 262.

IN THE

SUPREME COURT

OP

WEST VIRGINIA.

HUNTINGTON EASY PAYMENT COMPANY V. PAR

SONS.

[62 W. Va. 26, 57 S. E. 253.] LANDLORD AND TENANT—Breach by Landlord-Measure of Damages.-If a lessor fails to give possession at the commencement of the term, the measure of damages is founded upon equitable considerations, and the lessor can recover only such damages as have directly and necessarily been caused by the defendant's wrongful act, and if the plaintiff by reasonable exertion on his part, could have prevented such damages, he is bound to do so, and, failing in this, he cannot recover them. (p. 958.)

LANDLORD AND TENANT—Waiver. Acceptance of the Leased Property After the Time When the Landlord was Bound to Deliver Possession under the terms of the lease is no waiver of the tenant's right to damages suffered by him prior to the acceptance. (p. 958.)

LANDLORD AND TENANT—Breach by Landlord-Tender of Possossion-Damages.—If a tender of leased property is made by a landlord to his tenant a short time after the tenant was entitled to possession, he can recover damages only for the time he was kept out of possession, if, at the time of the tender he was in a position to accept it. (p. 958.)

DAMAGES—Burden of Proof to Mitigate.—The burden of proving omission of duty, on the part of the plaintiff, to mitigate the damages, rests upon the defendant. (p. 960.)

DAMAGES-Mitigation-Burden and Sufficiency of Proof.Evidence offered to establish a defense, operating to mitigate damages, must tend to prove all the essential facts, or it is properly ex. cluded. (p. 960.)

Vinson & Thompson, for the plaintiff in error.
G. J. McComas, for the defendant in error.

27 POFFENBARGER, J. For damages, general and special, for breach of a covenant in a lease of business rooms, for the period of five years, the Huntington Easy Payment Company obtained a verdict in the circuit court of Cabell county, against W. E. Parsons and Harriett Parsons, his wife, for the sum of $1,200. Under the impression that an error had been committed in respect to three items of special damages, namely, $200 for goods damaged, $80 for removing goods from one place to another in Huntington, and $16.75 for loss of time by employés, due to the greater time required for removing to Eighth avenue than would have been required for removal to the leased premises, the court, on a motion to set aside the verdict, reduced it to the extent of the aggregate of said three items, overruled the motion as to the residue of the verdict, and rendered judgment thereon for $903.25, to which the defendants obtained a writ of error.

28 The contract of lease made on the twenty-fifth day of June, 1903, leased the property for the term of sixty months, in consideration of $75 a month. It contained the following clause: “It is further covenanted and agreed by said parties of the first part that at the signing and ensealing of these presents the said parties of the first part shall give immediate notice to E. W. Chase to vacate said room and obtain possession thereof as soon as possible, not later than the fourteenth day of September, 1903, and the rent for said premises not to commence until the possession thereof is delivered to said party of the second part." The lessee did not obtain possession of the property within the time stipulated. Chase did not vacate the premises until the fourteenth day of December, 1903. A dispute arose between him and the lessor as to whether his contract was one of rental by the month or by the year. The evidence discloses that the lessors demanded of him the premises, but instituted no proceedings for ousting him. After the institution of this action and Chase's vacation of the premises, possession thereof was tendered to the lessee, but it declined to accept the same, and also refused a tender of the one month's rent which had been paid in advance. This occurred late in December, 1903, or very early in January, 1904.

The nature and extent of damages sued for are very fully disclosed by the bill of particulars, filed with the declaration which, in all material respects, reads as follows: “Difference between value of the lease for the

term of five years in excess of the contract
price, 60 months at $50.00...

$3,000.00 Extra expense of moving stock of goods from

Third Avenue, between 10th and 11th streets
of Huntington, to 8th Avenue, rather moving
to building leased.....

150.00 Cost of removing stock back to Third Avenue... 80.00

Value of time of managers and employés, lost by

reason of the greater time it took to remove
stock to 8th Avenue, than required to remove
it to the house contracted for ....

16.75 Loss on sales of articles forced to be sold at a

reduced price by reason of location of stock
on 8th Avenue

2,701.50 29 Value of articles destroyed by sleet on night

of removal for want of room to put them
inside

200.00 Loss resulting from decrease of volume of business ...

... 3,774.50 Rent paid in advance not returned and with interest ....

77.75" The instructions given by the court are not complained of. The principal contention is that the verdict is contrary to the instructions, as well as to the law which determines the measure of damages. For the plaintiff in error, it is argued that, as in January, 1904, less than four months from the date on which the lessee was, by the terms of the contract, entitled to the possession, a tender thereof was made, there was no right to recover for the whole term of sixty months, but only for such portion of the term as had been lost; and, assuming that the value of the premises, according to the testimony, was $150 a month, instead of $75, the difference of $75 for the four months would be the utmost amount that could have been recovered, on account of general damages for breach of the contract. On the other hand, for the defendant in error, the right to recover, as general damages, for the whole period of sixty months, the difference between the rent agreed to be paid and the actual rental value of the property, is insisted upon. Both parties rely upon the rule declared in Robrecht v. Marling's Admr., 29 W. Va. 765, 2 S. E. 827, and stated in point 4 of the syllabus as follows: “In an action of damage for the failure of the landlord to give possession of property, which has been leased, or from which he has ejected the tenant, where the gist of the action is the deprivation of the benefit of the lease, whether the action be covenant or tort the general rule is, that the plaintiff is entitled as the measure of his damages to the difference between the rent reserved and the value of the premises for the term. He may also recover such special damages as have been directly and necessarily occasioned by the defendant's wrongful act or default but cannot recover what he might have made on the premises during the lease, nor for loss sus

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