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Pertinent Legal Findings 



Right to Use Stream in Logging 



In a suit wliieli has recently been Ijefore tlie Idaho supreme court 

 (Cameron Lumber Company vs. Stack-Gibbs Lumber Company, 144 

 Pacific Reiiorter 1114) involving conflicting uses of a river in float- 

 ing and sorting logs, the following rules were laid down : 



Every person has an equal right with others to use a stream for pur- 

 poses of navigation to which it is reasonably adapted, but in exercising 

 that right be must pay reasonable attention to the rights of others, and 

 not unreasonably interfere therewith. But where booms and sorting 

 worlis for logs placed in a river do, to some extent, form a hindrance 

 to the free navigation of the stream at times, such hindrance should 

 be considered only as an incident to the reasonable use of the stream 

 for floating and securing logs. For such purpose, and as an Incident 

 to the reasonable use of the river for running and securing logs, parties 

 may use temporary sheer or guide booms to direct the logs or lumber 

 Into proper places in which to detain them for use. If an obstruction 

 merely impairs or renders more difficult the navigation of a stream 

 without destroying it, an individual has no right to complain. He is 

 not entitled to the best possible accommodations for navigation. 



And in the case of Johnson vs. Wild Rice Boom Company, 150 

 Northwestern Reporter 218, the Minnesota supreme court recently de- 

 cided that defendant company was entitled to accumulate and de- 

 tain water by flooding dams for such time and in such quantities as 

 was reasonably necessary to enable the company to drive with rea 

 sonable efficiency and dispatch the logs which were to be floated by 

 it upon that part of the stream over which it operated, and this not- 

 withstanding that such detention of the water so lessened the supply 

 in the stream that plaintiff meanwliile was unable to run his flour 

 mill, which was operated by water power derived from the same 

 stream. 



Duty to Safeguard High Platforms 



A lumber company which maintains a platform several feet above 

 the ground, upon which employes are refjuired to work, is under 

 obligation, to provide a guardrail for the safety of such employes. 

 (Texas court of civil appeals, Hamilton vs. Kirby Lumber Company, 

 171 Southwestern Reporter 546.) 



Forfeiture of Standing Timber by Buyer 



One who buys standing timber from the owner of the land on which 

 it is growing, with a condition requiring removal of the trees within 

 a limited time, forfeits the timber by failing to cut and remove it 

 within that time, especially where the seller gives him notice in ad- 

 vance to make the removal within that time. (Texas court of civil ap- 

 peals, Chavers vs. Henderson, 171 Southwestern Reporter 798.) 



Who Are Entitled to Materialman's Lien 



Under the Mechanics' lien law of Te.vas, a lumber company which 

 supplies millwork for a building under a contract with a second 

 company which in turn has contracted to furnish the work to the 

 original contractor, is entitled to a lien against the building. (United 

 States circuit court of appeals, fifth circuit; Huttig Sash & Door 

 Company vs. Stitt, 218 Federal Reporter 1.) 



Damages for Delaying Machinery 

 A seller of machinery to be used in a lumber mill is not liable for 

 loss sustained by the buyer on account of the latter 's men and teams 

 being idle while awaiting delayed delivery of the machinery, unless 

 the seller was advised when the sale was made that such loss would 

 follow a delay. (Kentucky court of appeals, Combs vs. Frick Company, 

 171 Southwestern Reporter 999.) 



Validity of Sunday Contract 



An agreement to sell lumber is not invalid because orally entered 

 into on Sunday, if it was ratified by letters written on a subsequent 

 secular day. (Wisconsin supreme court, Webster Manufacturing Com- 

 pany vs. Montreal Lumber Company, 130 Northwestern Reporter 

 409.) 



Proof of Disputed Question 



When a lumber company sues for the price of lumber and the 

 buyer denies that he received the quantity claimed by the company, 

 the latter has the burden of proving by a preponderance of the 



evidence that it delivered the quantity claimed. (Wisconsin supreme 

 court, Olson vs. White Star Lumber Company, loO Northwestern Re- 

 porter 443.) 



Elements of Damage for Breach of Contract 



In litigation arising from breach of contract to buy or sell lumljcr, 

 the courts frequently find difficulty in determining just what items 

 of damage are properly allowed. This is illustrated by a decision 

 which has just been handed down by the New Hampshire supreme 

 court in the case of Davis vs. New England Cotton Yam Company, 

 92 Atlantic Reporter 732. Defendant agreed to buy a quantity of 

 lumber to be delivered on an average date. After a few carloads 

 had been shipped, plaintiff complied with defendant's request to hold 

 the remainder for a time, and defendant having postponed receipt 

 of the remaining lumber for three years, plaintiff sued to recover as 

 for breach of defendant's agreement to buy. The trial court allowed 

 plaintiff to recover the excess of the contract price of the unde- 

 livered lumber above what it was worth at the end of three years, 

 plus the cost of resurveying it, and increase in cost of teaming over 

 the agreed time for delivery, but refused to allow the amount of dam- 

 age sustained to the lumber by exposure to the weather, taxes paid 

 on it in the meantime, and interest on the money invested in the 

 lumber. On appeal, the supreme court decided that it was improper 

 to disallow any of the items of damage, saying: 



' ' By ' damages, ' as the term is used in the law of contracts, is in- 

 tended compensation for a breach, measured in the terms of the 

 contract. The only losses that can be said fairly to come within 

 the terms of a contract are such as the parties must have had 

 in mind when the contract was made, or such as they either knew or 

 ought to have known would probably result from a failure to comply 

 with its terms. Therefore the test to determine whether the plain- 

 tiff is entitled to recover any of his various claims for damages is 

 to inquire whether the defendant either knew or ought to have known 

 when it made the contract that he might sustain such a loss if it 

 failed to comply with its terms. The plaintiff is therefore entitled 

 to recover, not only all the items the court allowed him, but also 

 three years' interest on the money he should have received for the 

 lumber, and the taxes assessed on the lumber for the three years. 

 The court has found that the defendant ought to have known that 

 it might be necessary to resurvey the lumber, and that the expense 

 of teaming it might increase; and all fair-minded men will agree 

 that it ought to have known (1) that the weather would damage 

 the lumber; (2) that the plaintiff would lose the use of his money; 

 and (3) that he would be compelled to pay taxes on the lumber, 

 not only while he was holding it for defendant, but also while he 

 was finding another customer." 



Duty to Provide Safe Appliances 

 A lumber company employing men in the operation of machinery 

 may be found to be negligent in requiring an employe to stop 

 machinery by shifting a belt with a stick. (South Carolina supreme 

 court, Cutter vs. Mallard Lumber Company, 83 Southeastern Re- 

 porter 595.) 



Demurrage Bnles — Special Privileges 

 A switch track is "full," within the meaning of a demurrage 

 rule to the effect that cars are to be deemed to have been delivered 

 to a consignee when they would have been placed on his track 

 except for the fact that it was full, when the maximum number 

 of cars that can be practically unloaded at one time have been 

 placed thereon, although the track would accommodate more cars, 

 but not without interfering with unloading. An agreement whereby 

 a railway company binds itself for a certain period not to furnish 

 cars to be loaded for shipments to the other party to the contract 

 is invalid as conferring special privileges. (Wisconsin supreme 

 court, Chicago & Northwestern Railway Company vs. Menasba 

 Paper Company, 149 Northwestern Reporter 751.) 



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