September Term, 1902.
Judgment affirmed, with costs.
The plaintiff is the owner of certain lands in St. Lawrence county, through which flows the Oswegatchie river. On the north side of the river on said lands plaintiff has a tannery, and across said river from the tannery it maintains a dam, and in the dam is a log chute thirty-eight and one-half feet wide. This dam has been maintained for many years. It is protected by booms running to a pier and from the pier to a big rock at the head of the pond. The defendants are copartners and own and operate a saw mill on said river below the plaintiff's property. In 1898 and 1899 the defendants constructed a reservoir on a branch of said river above the plaintiff's premises. The reservoir when full of water covers about three hundred acres and is about ten feet deep. The water is used to flood the river and float logs down over the plaintiff's dam to the defendants' saw mill. On a morning in April, 1900, the defendants caused the water to be let out of said reservoir, and some hours thereafter the water at the plaintiff's dam suddenly rose sixteen inches and brought a great quantity of the defendants' logs against the booms, and the booms were broken and the logs flowed through and against the plaintiff's dam and bulkhead, taking out about forty feet of the same. The plaintiff brings this action to recover its damages. The record does not disclose any right in the defendants to float logs over plaintiff's lands; indeed, no such right is asserted by the appellants in this court. The appellants contend that heretofore the plaintiff assumed to repair and maintain the booms, and that if the booms failed to hold the logs it was by reason of the plaintiff's failure to sufficiently repair and maintain the same. The booms were placed in the dam prior to 1896 by defendants or persons who desired to float logs in the river. They consisted of logs fastened together with chains made of three-eighths to five-eighths inch iron. In 1896 the dam and booms having been injured, one of the defendants told the superintendent of the plaintiff to repair them. Plaintiff repaired the dam and booms and sent a statement of the expense thereof to the defendants and it was paid. In repairing the booms plaintiff sent to the defendants for five-eighths inch chains and used a portion of them. The three-eighths inch chains were not strong enough, and it was such chains as well as some of the boom logs that broke at the time mentioned. Plaintiff did not put in the three-eighths inch chains. The evidence is far short of showing that the plaintiff assumed the responsibility not only of repairing the booms, but of maintaining the same for years thereafter to the defendants' benefit, without limit in the number of logs to be run or in the extent of the artificial means to be used in forcing the logs upon the booms. The record, although unsatisfactory, is sufficient to entitle the plaintiff to damages. The objections to the testimony relating to damages are not sufficient to raise the question as to the competency of the witness to give testimony in regard thereto. The detailed statement of expenditures was conceded to be "a correct account of the expenditures made by plaintiff to repair the dam and bulkhead of its property." The judgment should be affirmed, with costs. All concurred, except Fursman, J., dissenting.