
    Case 61 — PETITION ORDINARY
    May 29.
    Kentucky Lumber Company v. Miracle, &c.
    APPEAL FROM WHITLEY CIRCUIT COURT.
    1. Riparian Owners — Damages.—Where a lumber company constructs upon a navigable stream above the lands of a’ riparian owner a splash dam, which is torn away, and th.e accumulated waters rush down upon the lands of the riparian owner below, an action may be maintained by said owner for, damages approximately resulting from the overflow.
    R. D. HILL for appellant.
    1. Appellants demurred to so much of the petition as sought to recover for lodgment of the logs upon plaintiff’s land and it was sustained; and yet-the court permitted evidence to go to the jury as to the damages caused thereby.
    2. The denials in the reply to appellant’s answer and counterclaim. .are connected by the copulative conjunction “and,” and are in effect admissions, and are. therefore insufficient. Bliss on Cc$e Pleading, sec. 332; White’s Adm’r. v. L. & N. R. R., 15 Ky. Law Rept., 49.
    3. Appellees having failed to show that they were owners of the land the court should have sustained appellant’s motion for a peremptory instruction.
    4. The court should have instructed the jury that they should not find for the plaintiff any damages because of the lodgment of defendant’s logs oh their land. Wood Lumber Co. v. McQuinn,. 14 Ky. Law Rept., 521; Ingalls v. Howard Hardware Co., 14 Ky. Law Rept., 447.
    5. The instructions of the court authorized the jury to find for damages to four or five acres of land, when the petition sought to recover damages to only three acres.
    M. J. HOLT FOB APPELLEES.
    1. The owner of land although not in possession can maintain am action for damages to it, (Kentucky Statutes, see. 2361); and tbe party in possession whether the owner or not, can maintain an action for trespass against a mere stranger without color of title. Stratton v. Lyons, 53 Ver., 64; 30 Missouri, 440.
    '2. The defendant by its allegations in the answer shows the plain- • tiff’s ownership and possession, thereby dispensing with the necessity of further proof. Watson v. Clark, 4 Bibb, 218; McLane v. Todd’s heirs. 5 J. J. M., 335; 1 Dana, 8.
   .JUDGE PAYNTEB.

deliyeeed the opikton oe the court.

It appears in the petition that Miracle was the owner of a tract of land in Bell comity, Kentucky, through which Brownies Creek flowed. There was some bottom land on this creek in the possession of plaintiff fenced into three separate fields. The Kentucky Lumber Company, as its name suggests, was engaged in the lumber business. This creek was navigable to tbe extent that from a certain point saw logs could be floated into Cumberland river, into which the creek emptied. The lumber company constructed on the creek some ten or twelve miles above the land of Miracle, what is known as a “Splash Pam,” about twelve feet high. The purpose of it was to gather waters that flowed from the head of the creek into the pool above the dam. This pool was cast some distance above the dam, and was about 125 yards wide. The dam was torn away, and the waters, thus accumulated, rushed down the stream, carrying the logs, which the appellant desired to float to the Cumberland river. As one witness said,“it was wild water when loosened.” It carried with it not only the logs, but washed up trees. The water thus accumulated flooded the creek above its natural capacity, and when it reached the plaintiff’s property it .flowed over his fields, washing away his soil, and made deep

gullies in his land, and deposited a large number of the logs on his land. This action was brought to recover the damage resulting from this condition produced by the building of the dam, and the discharging of the waters in the manner indicated. On navigable streams, persons are entitled to engage in commerce and traffic which can be profitably conducted upon it. In doing so they have the right to place in the stream saw logs for the purpose of carrying them to any and all points on the stream. If a flood; should come in such stream and result in depositing the logs upon the property of a riparian owner, the owner of the logs would be entitled to reclaim them, and for the purpose of doing so, would have the right to enter upon the land where they had lodged and remove them. If the owner choose to do so, he can abandon them ánd the riparian owner could not 'maintain an action against him for failing to remove them. However, if he chooses to reclaim them, then he is required to pay the damage which occurred to the riparian owner by them remaining upon the land and resulting from their removal. If the logs were carried upon the land of the riparian owner by the negligence of the person who owned the logs, then an action could be maintained for the damages, approximately resulting from such negligence. The injury resulting to Miracle was not the result of' a flood or freshet against which man could not guard and protect the riparian owner, but it was the direct result of the lumber company in erecting the dam and producing the increase and flow of water above the height to which the stream would naturally go. It was the' act of the lumber company that produced whatever injury plaintiff sustained, and for which he was entitled to maintain this action. It is said by Grould on Waters, Sec. 102, “the common law rule is that a person whose property is carried by flood, or inevitable accident upon another’s land, and who elects to reclaim and not abandon it, becomes responsible, immediately upon its removal, for the damage done by ihe property upon such land; and the law implies, in such a case, a promise of compensation, upon which, in the- absence of an express promise an action may be maintained.”

In Shelton v. Sherman, 42 N. Y. 484, it was ruled that where property is borne upon the land of another by inevitable accident without his fault or negligence the owner may elect either to abandon the property or reclaim it. If he elects to abandon it he is not liable to the owner of the land for any injury occasioned by it; if he elects to reclaim it he must make good to the riparian owner the damage so occasioned.

The action is for the damages which resulted from the wrongful act of the lumber company in constructing the dam and in thus forcing the water and logs on plaintiff’s land, and it seems to us entirely clear that the company is liable for such damages as he sustained. The lumber company asserted a claim for damages on the ground, as it alleges the plaintiff had refused to permit them to remove the logs from his land. We think the question for damages growing-out of the allegation of the lumber company as to this matter was fairly submitted to the jury. The court gave an instruction upon this question which was substantially the same as the one offered by the defendant and refused by the court. Without entering into a discussion of other questions raised, it is sufficient to say, we do not think any error occurred at the trial which prejudiced the rights of the defendant. We have examined the case of Ford Lumber Co., &c. v. McQueen, 14 L. R. (Superior Court) cited by counsel for defendant. We think it sustains the views we have expressed. . .

The judgment is affirmed.  