
    Gustave Anderson v. The Thunder Bay River Boom Company.
    
      Destruction of freehold — Proof of title — General verdict — Negligence-.
    1. Destruction of the freehold, as by the washing away of land, is an injury for which no one but the owner of the inheritance can recover.
    2. A quitclaim deed is no evidence of title if at the time of its execution the grantee was in possession and the grantor not.
    3. Judgment for injury done by the destruction of the freehold must be reversed if the verdict was general while title to a part of the property was not fully proved.
    
      4. Requests to charge and refusals thereof need not be noticed by the appellate court where they were based on hypotheses contrary to the jury’s findings.
    5. The degree of care required of a party is> a question of law for the court and should not be left to the jury to determine, as-it would be by a charge that he must exercise “ such a degree of care as the law requires.”
    Error to Alpena. (Emerick, J.)
    April 17. — June 10.
    Assumpsit. Defendant brings error.
    Reversed.
    
      Clayberg c& Sleator for appellant.
    Turnbull, Shields & Dafoe for appellee.
   Champlin, J.

This is an action on the case, brought by the plaintiff as owner and occupant of certain parcels of land bordering on the Thunder Bay river, to recover damages, which he alleges he has sustained by means of the booms of the defendant, and its negligent and improper management of the logs committed to its charge for booming purposes.

The plaintiff in error is a corporation duly organized under the general laws of the State of Michigan, and has been doing business therein for several years last past. Said business consists in the driving, booming, sorting aud delivery of logs in the waters of Thunder Bay river. The plaintiff, after showing title in himself to lots 4 and 5, in section 31, in township 32 north, of range 7 east, offered in evidence a quitclaim deed from one Gideon Ellsworth and wife to plaintiff, dated April 10, 1877, of a portion of lot 1, of section 32, in township 32 north, of range 7 east, which deed was admitted in evidence, against objection of defendant’s counsel; after which plaintiff showed that since receiving said deed he had been in possession of the premises therein described, and had cultivated and used them. No further evidence was introduced to show title in plaintiff to said lot 1.

The court permitted the following question to be asked, and answered against the objection of defendant’s counsel: “ In reference to taking away any of your lands in front of it, state what effect it had upon your lands in taking your lands away?” And the court charged the jury that among the elements which they would have a right to consider in making up their verdict would be some injury to the shore of the land itself. The admission of this testimony and the instruction to the jury are claimed to be improper, because the injury sought to be recovered for was a permanent one, viz., the absolute destruction, by washing away, of a rod or more of the land itself, as testified to by the plaintiff. This was an injury to the freehold, and no one but the owner of the inheritance could recover for its destruction. George v. Fisk 32 N. H. 32; Van Deusen v. Young 29 N. Y. 9; Davis v. Nash 32 Me. 411; Curtiss v. Hoyt 19 Conn. 159; Hosking v. Phillips 3 Exch. 168; Moyer v. Scott 30 Mich. 345.

The plaintiff had not shown any title to lot 1, described in the declaration. A quitclaim deed from a party, not shown to have been in possession at the time it was executed, is no evidence of title; much less when the party claiming under the deed was already in possession of the land at the time the deed was given. The evidence in the case, which is all returned, did not show how much of the shore line was washed away and destroyed by the abrasion of the logs under defendant’s charge in front of each particular parcel of land. The verdict of the jury was general, and covered all the damages upon which proof had been received. It must therefore have included damages for the injury to the land upon lot 1 by the destruction of its shore. For this the plaintiff was not entitled to recover without proving title.

The evidence showed that below the plaintiff’s land there was a dam across the river, called the Trowbridge dam, which was under the control of the defendants, and that the defendants had, above this dam, jammed the logs in its charge so that when the freshet occurred in June, 1883, the water in the river was raised and set back, and flooded plaintiff’s land, injuring and destroying his crops, and casting saw-logs upon his land. And it also appeared in evidence that above the plaintiff’s land there was another dam across the river, not under the control of defendant [and known as the “ Speechley Dam”], and that during this freshet and stage of high water, some person unknown opened the Speechley dam, and thereby let out large quantities of water which greatly augmented the flood below, and tended to raise the water on plaintiff’s land much higher than would have occurred had not the Speechley dam been opened.

In view of these facts the defendant requested the court to charge the jury as follows: (3) “If the jury believe, from the evidence, that a portion of the damages to plaintiff’s premises was occasioned by extraordinary freshet or rain-fall, or by a large quantity of water being freed from the Speechley dam, without the fault or consent of defendant, no verdict can be given against this defendant for such damages.” This request was refused. The force of this request, and the exception to the charge as given, are rendered nugatory by the special finding of the jury to the third special question submitted by the defendant, namely: “Would there have been any damage to plaintiff’s premises from extraordinary rain-falls, or waters escaping from Speechley’s dam, had the logs not been jammed in the river above Trowbridge’s dam ?” To which the jury answered, “ No.”

It is unnecessary to notice any of the requests to charge, and the charge itself, based upon facts supposed to exist contrary to that found by the answer to the above question. The fourteenth assignment of error is based upon the instruction of the court to the jury, in which he uses this language: “ The Boom Company has a right, in carrying on its business, to move this property which is intrusted to its care, down the stream with such reasonable care and diligence as the law requires of a person or corporation engaged in that business) ” and again : “ Now, the Boom Company itself, in carrying on these operations, has a right to move these logs down the stream, provided it does so with all reasonable care, — such a degree of care as the law requires, as I have stated, of a person or corporation engaged in carrying on that business. But ■on the other hand, it is liable for injuries which are caused to persons owning lands which lie along that stream, and •contiguous to the stream, by reason of its negligent carrying on of that business, or for its direct or willful acts whereby injury is-caused.”

It is claimed that the rule of law laid down by the court as to the care required of the defendant in conducting its business was left in uncertainty, and unexplained by the court; that it really left it to the jury to determine what was the degree of care the law required. The charge seems to be open to this criticism, and attention is called to it here in order that upon a retrial of the case the error may be avoided. For the reasons above stated there must be a

Reversal of the judgment, and a new trial granted.

Campbell and Sherwood, JJ. concurred. Cooley, C. J. •did not sit.  