Emily S. Sullivan, Executrix, and Martin H. Sullivan, Executor, of D. F. Sullivan, Deceased, Appellants, vs. J. J. Jernigan, Appellee, 21 Fla. 264

The Chief-Justice delivered the opinion of the court: This suit was instituted by the appellee in the court below to recover damages from the appellant for obstructing and keeping a boom in the Escambia river by means of which the plaintiff was hindered and detained in the free navigation of said river with rafts and drives of logs. The defendant pleads— 1st. That he is not guilty of the wrong and injury in the said declaration mentioned.. 2d. That his said log boom is not an illegal obstruction to the navigation of said Escambia river in manner and form as in the said declaration alleged. 3d.

That plaintiff did not lose any timber in manner and form as alleged in said declaration. 4th. That the detention and loss of plaintiff’s timber, if any, was not caused by defendant’s said boom but was caused by plaintiff’s want of customáry care, 'skill and caution exercised by others who navigate the said river with timber.' '. '■ ; ' * * • 1 The first assignment of error is not insisted on here. The second is in refusing to give the jury the instruction asked by defendant and numbered in the bill of exceptions. 1st charge.

That the jury in considering the testimony before it in regard to the question whether the plaintiff exercised the care, diligence and skill ordinarily exercised by timber raftsmen On the Escambia river to prevent the con-act of his timber with defendant’s boom, must not confine its consideration to the statements of witnesses to such care, diligence and skill exercised by them to prevent such contact of plaintiff’s timber rafts with such boom, but the jury must also consider in connection. with such statements the testimony of other witnesses, if any there be, relating to the number of rafts navigated by other persons which passed the defendant’s boom without being thereby impeded or obstructed during the period when plaintiff complains that said boom obstructed and impeded his timber.

And the said Judge did then and there deliver his opinion and decide that the said charge shall not be given, and declined to issue the same to the said jury, to which opinion and decision the defendant by his attorney did then and there except. Evidence had been submitted to the jury by witnesses for plaintiff that the timber, both, rafted and driven by him, had come in contact with’ defendant’s boom and delay and detention caused thereby, although they had used due diligence to prevent such contact and detention.

Evidence had also been introduced by defendant tending to show that a great number of rafts had been navigated down the river and past defendant’s boom by other raftsmen without detention or damage.

On this evidence the ' counsel for ap-' pellant asks the court to charge the jury that in considering the testimony in regard to the question as to whether plaintiff had exercised the care, diligence and skill ordinarily exercised by timber raftsmen on the Escambia river, that they must not look alone to the statements of the witnesses to such care, skill and diligence, but must also consider- in connection with such statements the testimony of other witnesses, if any there be, relating to the number of rafts navigated by other persons which passed the defendant’s boom without being obstructed during the period when plaintiff complains that said boom obstructed his timber.

Counsel for appellee insists that the “ postulate on which the instruction is based is incorrect. It assumes that the-question before the jury was as to the care, diligence and skill ordinarily exercised by timber raftsmen on the Escambia river.

If there was any question of care before the jury the true test of whether the plaintiff had duly exercised it would be obtained by comparing his conduct with the ordinary and usual conduct of prudent men engaged in the same business.” While this is ordinarily the correct standard of comparison to ascertain whether services were performed with due skill, yet we thinlc the instruction should have been given. It did not specify any particular rafts-man or any particular number of them, but “ timber rafts-men on the Escambia river.” It evidently included all the persons engaged in such business on the said river.

It proposed as a standard of comparison of plaintiff’s conduct of his rafts, the ordinary skill and caution of the “ timber raftsmen ” of said river. The ordinary skill and caution of these raftsmen, taken collectively, would become the rule of prudence, care and diligence; not to exercise a degree of care and skill equal to that ordinarily exercised by them would be negligent. What is said as to this instruction is meant exclusively of rafts and not of drives. The evidence is that plaintiff used both methods of navigating said river.

The issue and the evidence justified the instruction asked; counsel for appellee insists also that the instruction assumed it to be a fact that “ there were a number of rafts which passed the defendant’s boom without being thereby impeded or obstructed during the period when plaintiff claims that said boom obstructed and impeded his timber.” We cannot agree with counsel in this view ; we think the language which immediately precedes what counsel considers an assumption of a fact in the instructions, to wit: “ the testimony of other witnesses, if any there be,” relieves the instruction of the objection.

The second instruction asked by defendant was in effect that if the jury found from the evidence that it was the custom and usage to float timber down said river in rafts, that the omission of plaintiff to raft his timber was

an act •of negligence in the navigation of said river, and that he was not entitled to recover. The third instruction asked by defendant was in effect that if the jury were satisfied that the defendant’s boom •did obstruct the navigation on one side of the river, yet that the plaintiff knew of said obstruction before setting his timber adrift in the river without putting it in rafts and putting persons on it to guide it, that it was contributory negligence on the part of plaintiff; and that he was not entitled to recover.

The fourth instruction asked is that timber set adrift in the river without being put in clamps or rafts with persons on them to guide them, and when each piece is left to run by itself and under no impulse or guidance but the current and eddies of .the stream, is not navigation in the sense of the law and that defendant’s boom could not be an obstruction to loose floating pieces of timber.

These three propositipns may be properly considered together as they all involve the right of the plaintiff to drive his timber on a navigable river without confining it in rafts or clamps under the guidance of competent persons. It is involved in the second instruction asked for, because if the plaintiff had such a right by law he could not be deprived of it by a custom; whether a custom exist or not, i» a question of fact for a jury. Its validity or invalidity is a question of law for a court. Chicago Packing Co. vs. Tilton, 87 Ill, 548.

It is involved in the third instruction, because if it was a valid right the knowledge that an obstruction existed on the river below could not prevent him from exercising or attempting to exercise his right of navigation. The fourth instruction asked sets up the proposition singly and directly. The determination of the question as to whether a person has a right to drive timber and logs on a navigable stream without confining them in rafts and clamps with persons on such rafts or clamps to guide them, will determine the correctness or incorrectness of these instructions.

In Maine, where from a similarity of interest we would naturally look for adjudications in this and similar questions, we have not been able to find any decision of its courts directly on this point. Rut while the question seems not to have been directly decided it seems nevertheless h> have been generally conceded. In Treat vs. Lord, 42 Maine, 553, which was an action for trespass quare clausum for breaking dams of plaintiff, we must infer from the language that the logs were driven.

These expressions are used, “his servants drove a large quantity of mill logs;”' again, “ and sluiced defendant’s logs through one of plaintiff’s mills.” Again, “plaintiff forbade defendant from driving his logs through,” and “ that defendant thereupon drove through.” The Judge in instructing the jury says, “ that if Coldstream was such a stream as the public would have a servitude in for driving logs” also “that the defendant had a right to drive their logs through” if it was a navigable stream. This part of the charge was not excepted to. The only question raised was, was the river navigable vel non.

See also Knox vs, Chaloner, Ib., 151. Carter vs. Thurston, 58 New Hampshire, 585, is more direct. In that case a suit for trespass was brought by an owner of land bordering a public stream for damages for entering upon his land to reclaim logs washed there by the current. In this case the logs were in a drive.

The court say “ one has the right to use . a public stream in a proper and reasonable manner to float his logs, and if they strand on the land of a riparian owner he is not liable for any injury.thereby to the land unless negligent, and may enter upon the land to reclaim the logs, but is liable for any improper use of the stream or unnecessary injury to the land.” See also secs. 2 and 3, chap. 507, act of January 8,1853, McClellan’s Digest, 746, sec. 7. It was in evidence that the Escambia river had been so used for a long time and was still so used by some persons.

Our conclusion is that a person has the right to drive timber or logs down a public stream without confining them in rafts or clamps, and putting competent persons on such rafts or clamps to guide them at least so far as such driving of timber or logs does not impinge upon the right of any other, person to navigate said stream in any manner allowed by .law. The right of a person to drive logs on such a stream is paramount to the right of another to obstruct said stream in whole or in part by booms, except in some special instances temporarily, which are not concerned here.

As the ease must be reversed for the refusal of the first instruction, we have thought it not improper to express our views on the law governing the main point of the controversy. Judgment is reversed and new trial granted.