Allegation — Proof — Issue — Negligence.
Where a stream is found by the jury to be a "floatable" stream, and the complaint charges that the plaintiff's dam was injured by the defendant unlawfully and willfully floating logs over the dam, there being no allegation of negligence on the part of defendant, an issue as to such negligence ought not to be submitted to the jury, nor found by them without proof.
(673) CLARK, J.
This action was brought by the plaintiff against the defendants to recover damages which the plaintiff alleges that he had sustained by reason of the defendants having unlawfully and willfully rolled and placed into Tuckaseigee River large numbers of logs, lumber and timber, and permitted and caused the same to be floated down against his mill dam, by which the dam was broken down and destroyed. The defense was that the stream was a floatable one and therefore a natural highway, and that the plaintiff's injury, if any he suffered, was without remedy, no negligence being alleged or proved.
The court submitted an issue as to whether the dam was injured by the negligence of the defendants, and instructed the jury that if they should find that the river was a floatable stream where the plaintiff's mill and dam were located, still the defendants would be liable if they negligently injured the plaintiff's dam in the floating of the logs. The defendants objected to the issue and excepted to the charge of his Honor upon it.
The issue should not have been submitted, for the complaint did not allege negligence on the part of the defendants, nor was there a scintilla of evidence that the defendants did anything except cut the logs and put them in the stream for floating down the river. The words unlawfully and willfully mean simply that the act of cutting and putting the logs in the stream was contrary to the plaintiff's right and intentionally done. There must be a new trial of this case for that error.
New trial.