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gled and undermined, the flume injured. Dean sued McLean for damages.38


One is-


sue on appeal, after Dean won a judgment, was the propriety of allowing Dean to tes- tify as an expert on how timber should be handled through a dam. Judge James Barrett, writing for the court, approved the admission of Dean’s testimony. He explained,


The running of the logs in that stream, and through that bulkhead, was not a matter of common knowledge, nor of adequate common judgment upon the facts shown by the other evidence. The experience and observation of the plaintiff gave him the grounds and faculty of opinion peculiar to himself, and not common to men who had no such experience or observation. In a substantial sense he may be regarded worthy of consideration as the ground of judgment and opinion in others who have not such knowledge and skill.39


It had been only fifteen years since plain-


tiffs or defendants were authorized to tes- tify at all in civil trials. Before that time, they were regarded as incompetent, as they had an interest in the outcome of the trial. Na- thaniel Chipman, in his first stint as chief judge in 1791, held that no one interested may be a witness.40


In 1832, Chief Judge Titus Hutchinson said it clearly: “no person


interested in a cause can be admitted to testify in favor of that interest.”41


In 1852,


the legislature changed the practice, as- serting, “No person shall be disqualified as a witness in a civil suit or proceeding, at law or in equity, by reason of his interest in the event of the same, as a party or otherwise; but such interest may be shown for the pur- pose of affecting his credit.”42 When one log drive met another, there was always confusion. Goff was a Richford sawmill owner, downstream on the Mis- sisquoi River from Brainerd’s mill. In the spring of 1875, logs for Goff’s mill became commingled with logs for Brainerd’s, and Brainerd helped himself to a share of them, ignoring the mark “J.C” on those logs des- tined for Goff. Sorting out who owed what to whom, Judge Wheelock Veazey allowed recovery for the marked logs, but not for another lot of timber not so marked, with- out better proof of ownership.43 Sometimes logs overshot their destina- tion. Gardner S. Melendy sued to recover the value of certain logs lost through the carelessness and negligence of George A. Ames and others, hired to drive the logs down the Connecticut River in the late 1880’s from Thetford to Melendy’s mill.44 Ames and his men had constructed a boom that failed to hold back the logs. While some of the logs were stopped at Turner’s Fall, the river swept the rest downriver and they were lost (at least to Melendy). In a


decision reported in 1890, the case turned on who had the burden of proof for care- lessness and negligence. The Court re- versed and remanded the matter after con- cluding that the trial court’s charge to the jury was infirm in shifting that burden to Ames.45


negligence. Timing is everything if you want to ride


the high water in springtime. In a 1912 de- cision of the Supreme Court, Joseph Bo- ville, a log driver from Bloomfield, is seen having to wait to move his logs down to the Connecticut, as another drive passed through the channel. He blamed the paper company, a Maine outfit, for that delay, and testified he could have made it down the Connecticut to Fitzdale (now Gilman) in fif- teen or sixteen days if not impeded.46 Willis R. Boutwell’s lands were flooded by a logjam on the White River in Pittsfield and Rochester in 1912.47


He sued to stop


the company, but the Court refused. He could have damages, but no injunction. An 1890 act of the legislature had given the Champlain Realty Company privileges on the river, and they had used that authority for many years. They could continue, but not escape financial liability.


The Champlain Realty Company was the most successful of the logging companies in the last years of the log driving era. It was a subsidiary of the International Paper Company.48


The legislation they cited in


Melendy had the burden to prove


14


THE VERMONT BAR JOURNAL • FALL 2011


www.vtbar.org


Ruminations: The Law of Log Drives


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