
    Gulf Red Cedar Co. v. Walker.
    
      Action of Trespass on the Oasc.
    
    [Decided January 15, 1902.]
    
      1. Negligence, liability of person floating logs for. — A person engaged in floating timber on a river during a flood is liable in damages to a lower riparian proprietor for damages to bis land and mill-dam caused by bis negligence in allowing tbe timber to accumulate near boom-posts, thus diverting tbe stream and breaking tbe dam.
    
      2. Trespass on the ease, what damages recoverable. — In an action of trespass on tbe case damages, which are remotely consequential, are recoverable.
    
      3. Same; what damages recoverable by lower riparian proprietor. A lower riparian proprietor is entitled to recover damages for an overflow and washing of bis land caused oy lumber during a flood drifting out of the stream and lodging in his • fields and on the banks of the river.
    4. Aci of God; definition of.- — The term, “act of God,” m Its legal sense, applies only to events in nature so extraordinary that tbe history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.
    
      5. Same; flood as. — Floods such as from climatic and geographical conditions may reasonably be expected, whether of frequent or infrequent occurrence, cannot be said to be the act of God and must be taken into consideration in estimating hazards attending the obstruction of water courses.
    
      Demurrers, when rulings on not considered. — Where the ruling on a demurrer is shown simply by a recital that “plaintiff de- / Ó2 murs to .defendant’s plea, and the court sustains the demurrer,” the entry lacks the form and essential declarations of a judgment on the demurrer and cannot be considered.
    Appeal from Jackson Circuit Court.
    Tried before Hon. A. H. Alston.
    Action by Martin 'Walker against Gulf Red Cedar Company for damages to- plaintiffs mill dam and land caused by an overflow of Paint Rock river and defendant's negligence in allowing timber to accumulate against boom posts near plaintiff’s premises, breaking his mill dam, and diverting the water upon his land, Avashing it and demolishing his fences, and scattering drift Avood in his fields. The trial Avas had on the plea of not guilty. The evidence Avas conflicting as to defendant’s negligence. The court, at plaintiff’s request, charged the jury as follows: “There is no evidence in the case that the people of Paint Rock valley got $100, 000 a year for their timber.” The court- refused the folloAAdng charges requested by defendant: (1.) “The fact, if it be a fact, that drift logs and other obstructions Avere left piled on or scattered over defendant’s (?) huid is not a matter of damage for Avhich plaintiff can recover in this action.” (2.) “There can be no damage alloAved for any wash above the mill', or through the mill yard, because the evidence fixes no data for estimating this damage on AAdiich a calculation can be based.” (3.) “There can he no recovery in this case for any damage for timber placed in the river and floated prior to December, 1899. This was the date defendant began the use of the river for floating, business.” (4.) “If the jury are unable to say from the evidence in this ease, from any i*eliable data,, Iioav much of the injury to the land Avas done during the winter and spring of 1899 and 1900, then it would be their duty not to assess damages for this injury.” (5.) “The fact, if it be a fact, that defendant’s timber drifted out of the stream and lodged on the banks, and in the fields of plaintiff, and after it- had caught on the banks or in the fields it caused the volume of the Avater there to' floAv over plaintiff’s land and Avasli it, then thri would be an injury from which no recovery could be had in this case.” (6.) “If the jury believe the evidence: in this case, they should find for defendant.” (7.) “The floods in the river, which caused the water to rise and overflow the banks, was the act of God, and defendant would be in no way responsible for it, even though it damaged plaintiff.” (8.) “If a tide came in the river whereby the river overflowed its banks and spread out for half or three-quarters of a mile over its banks, and thereby defendant’s timber ivas carried out of the channel and over the surface of the water outside of the banks, then this was the act of God and not of defendant, and defendant would not be liable unless he was in some way negligent in its management.” From a judgment for plaintiff the defendant appeals.
    J. E. Brown, for appellant.
    S. W. Tate and Martin & Bouldin, contra.
    
   SHARPE, J.

— Neither defendant’s right of floatage nor plaintiff’s right to maintain a mill-dam on Paint Rock river has been questioned or made a subject of dispute in this cause. Assuming they had concurrent rights, the one to float timber and the other as a mill and land-owner to have his property protected from unnecessary and damaging displacement of water and obtrusions of floated timber, defendant was under the duty to use ordinary care in conducting its business in order that injury to plaintiff’s property from such causes might be averted.—Ala. Lumber Co. v. Keel, 125 Ala. 603; Witheral v. Muskegon, etc., Co., 68 Mich. 48, 13 Am. St. Rep. 325; Koopman v. Blodgett, 70 Mich. 610, 14 Am. St. Rep. 527.

In the record there is evidence which though disputed tends to show that defendant in floating timber during a flood suffered it to accumulate against some boom posts near plaintiff’s premises, in a large mass which broke part of his dam and diverted water from the course of the stream whereby plaintiff’s land was washed, his fence demolished and drift wood was piled and scattered in his field. From this, and notwithstanding conflicting evidence, a case was made for the jury within the principle of Alabama Lumber Co. v. Keel, supra, where defendant’s predecessor in the same business was held for injuries similar- to those bare involved.

Injuries done in the Winter and 'Spring of 1899 and 1900 to plaintiff’s land from drifted timber and from washings are well within the complaint’s averments. If caused by negligence as the jury was at liberty to find, those injuries merited an award of at least nominal damages notwithstanding a lack of data from which to fix the amount of damages actually resulting from the drift referred to in the first refused charge, or from washing at the particular places mentioned in the second refused charge, or at the times stated in the fourth refused charge.

Plaintiff testified “defendant was doing business during ’98 and Spring of ’99 floating timber down Paint Bock river.” The court was, therefore, not authorized to assert as proposed by the third refused charge, that defendant began such business in December, 1899.

In actions on the case the test of whether damages are recoverable is not whether they are consequential, but whether they are remotely so. Damages the fifth charge would have excluded were not remote.

Floods such as from climatic and geographical conditions may reasonably be expected, whether of frequent or infrequent occurrence, must be taken into- consideration in estimating hazards attending the obstruction of water courses. The term act of God in its legal sense applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.—So. R’y Co. v. Plott, at present term. That the flood referred to in-the seventh and eighth refused charges was of the latter class, was not proved. Moreover, these two charges ignore the tendency of the accumulated timbers to displace water from the river’s channel and thereby increase the overflow.

Killings on demurrers to pleas assigned as error appear by record entries which are no more than recitals lacking the form and essential declarations of judgments on demurrers, and, therefore, do not support assignments of error.— Jasper Mercantile Co. v. O’Rear, 112 Ala. 247; Crawford v. Crawford, 119 Ala. 34.

Of charges given at plaintiff’s request, the first is a mere assertion of an absence of evidence which is justified by the record, and the others are not insisted on as erroneous.

Judgment affirmed.  