Kuhnis v. Lewis River Boom & Logging Co.

Citations

• 51 Wash. 196
• 98 P. 655
• 1908 Wash. LEXIS 995

Syllabus

<p>Navigable Obstructions — Damages from Boom — Act of God. Tbe maintenance of a boom in a navigable river whereby tbe overflow from extraordinary floods is turned against and washes away the opposite banks, renders the owner of the boom liable for the damages; and the same cannot be excused on the plea that an extraordinary flood is an act of God, where floods of equal or greater force had been known six or seven times, since the flood might have been reasonably anticipated.</p> <p>Same' — Instructions. In an action for damages from the maintenance of a boom in a navigable river, causing a flood to wash away the opposite banks, error in instructing that an extraordinary flood is an act of God, imposing no liability upon the owner of the boom for damage done, is not cured by a subsequent instruction to the effect that there would be no liability if the damage was caused by sudden unusual floods that could not be anticipated or guarded against; prejudice being presumed from error until the contrary conclusively appears from the record.</p> <p>Same — Damages — Mitigation. In an action for damages for diverting flood waters of a stream and washing away plaintiff’s barn and contents, it is error to instruct that the plaintiff cannot recover any damage for their loss, if he refused to permit the defendant to remove the property to another location of safety; since plaintiff was not hound to incur extraordinary expense disproportionate to the results, and there would he at least an element of damage in the choice of location and value of the property after it was moved.</p>