#### D. M. WARREN v. COHARIE LUMBER COMPANY.

(Filed 14 December, 1910.)

Navigable Streams — Obstruction—Damages—Punitive Damages — Evidence.

In an action wherein actual damages were claimed, with punitive damages, for damming a navigable stream, made a misdemeanor by Revisal, 3559, there was evidence sufficient tending to show, and under correct instructions from the court the jury found, that the stream in question was navigable: Held, to recover punitive damages it was insufficient to show merely that the stream was obstructed to plaintiff’s damage, it being necessary to prove, in such cases, malice, fraud, wanton or willful disregard of the plaintiff’s rights, or other circumstances of recklessness or aggravation.

Appeal from Whedbee, J., at August Term, 1910, of Sampson.

This action was brought to recover both actual and punitive damages for obstructing the Little Coharie River, a floatable *35stream in Sampson County. Tbe plaintiff was floating a raft of telegraph poles from a point on tbe said river in Sampson •County to Wilmington, N. C. Tbe plaintiff’s agent in charge gives tbe following account of tbe act which caused tbe injury, for which this action is brought to recover damages:

“I took the raft down the river. We left home on Saturday. A tree had blown across the river about a half or three-quarters of a mile above the mill. We found the river full of logs above this tree. They were 4 to 5 feet deep on each other. The tree had stopped them and blocked the river. We broke the logs loose and they drifted down on others. We could not get through with our raft. It was as big a mess as I ever saw. We went down to the defendant’s mill and saw Mr. Clement. lie had the river dammed around the big sharp bend in the river with spiling driven down. There was a tram running across the stream. He had made a new cut across the neck of this bend. We asked Mr. Clement to open the river, and he told us that he had it dammed for his benefit at the mill. There was a tree across the river a half or three-quarters of a mile above the mill which held the logs that had blocked our passage, and he told us to go up and cut that log away. He said he did not want to unlock the river and let us by at the dam; that he would lose a lot of work that he had done, and that he would have to do it over again. He said: ‘Suppose I pay you some money and you turn and go back home and wait until there comes another freshet,’ and by that time we would have the cut open which would let us through this channel. The cut changed the channel of the river. Mr. Warren’s son said, ‘What amount of money can you afford to give us?’ and he said, ‘$25.’ I said, ‘Tour pa will not be satisfied.’ Mr. Clement then said if the river must be opened, for us to cut out -the sweet-gum tree across river above and he would open up a way. He told us that the last logs above the_ mill in the river which had blocked our passage were not his logs; that he owned none of the logs until they were delivered into his pond. We went down and sawed out the logs before night. This was Thursday. It took us until dark to get the logs broken loose, and soon the logs would run together and block us again. We then went on down to the *36mill, and no effort was made to open the river that night. "We went to see Mr. Clement next morning and called him up about sunrise. He said he would send some hands up the river to help with the logs. Some colored men came. They commenced work that day to open the river. They worked as hard as they could. Jake Hill, who had a raft ahead of us, got his raft through the cut. The pond was across the old channel of the river. Our raft did not get through that night, and by next morning, which was Saturday, the freshet had run out. I could have carried the poles on to Wilmington but for the obstruction. We went back to Clinton. Next week we went back to our raft and got them through by tearing them to pieces. We were delayed, as the logs had accumulated and backed up above the bridge.”

The Mr. Clement referred to was the general manager of defendant; the dam across the river was built by defendant. There was evidence tending to prove that the Little Coharie River was a floatable stream. In the complaint, the allegation upon which plaintiff bases his claim for punitive damages is as follows:

“3. That the defendant has unlawfully, willfully, and deliberately dammed up said stream at its said mill so that rafts cannot pass, which obstruction is made a violation of law, and is permitted to remain in said river, although the defendant well knows that the same is in violation of law and the rights of rafters.”

The following issues were submitted to the jury, which responded thereto as set out:

1. Was the'Little Coharie River a public floatable stream at that point on said stream where plaintiff alleges the same to have been obstructed at the time of the alleged obstruction? Answer: Yes.

2. If so, did the defendant company unlawfully and wrongfully obstruct the same to the injury of the plaintiff ? Answer: Yes.

3. What actual damages is plaintiff entitled to recover of defendant? Answer: $100.

*374. Did tbe defendant willfully and wantonly obstruct free passage of plaintiffs raft down tbe Little Oobarie Eiver, as alleged in tbe complaint? Answer: Yes.

.5. What punitive damages, if any, is plaintiff entitled to recover of defendant company? Answer: $200.

Tbe defendant excepted to tbe issues submitted, and excepted to bis Honor’s charge on tbe issue of punitive damages. Tbis charge was as follows: “That if tbe defendant wantonly and willfully obstructed said stream, whereby tbe plaintiff was hindered and delayed in conveying bis raft- down tbe same, that tbe jury should answer tbe fourth issue ‘Yes,’ and could award punitive damages, or exemplary damages.”

There was judgment upon tbe verdict, and defendant appealed.

Faison & Wright and Henry A. Grady for plaintiff.

George F. Butler for defendant.

MANNING, J.

In our opinion, the evidence that the Little Coharie River was a floatable stream within the definition established by the decisions of this Court was sufficient to be submitted to tbe jury, and, approving tbe rulings of bis Honor upon tbe exceptions taken to tbe evidence addressed to tbe first issue, we cannot disturb the finding on that issue. Comrs. v. Lumber Co., 116 N. C., 731; S. v. Corporation, 111 N. C., 661; Gwaltney v. Land Co., 111 N. C., 547; s. c., 115 N. C., 581. We think tbe plaintiff was entitled to recover upon tbe evidence tbe actual or compensatory damages sustained by him and allowed by tbe jury, but we do not think tbe evidence sufficient to be submitted to tbe jury on tbe issue of punitive damages. Section 3559, Eevisal, condemns as unlawful tbe act of tbe defendant in willfully obstructing tbe flow of tbe water in tbe Little Oobarie Eiver; but tbe fact that defendant did tbis act is tbe only fact offered by tbe plaintiff in support of tbe allowance of punitive damages. There is no evidence of malice, wantonness, ill-will, trespass upon tbe person, or any other fact usually held essential for an allowance of punitive damages. In actions of tort, in which punitive damages are allowed, tbe *38controlling principles are very well settled by the decisions of this Court. Downing v. Stone, 152 N. C., 525; Stanford v. Grocery Co., 143 N. C., 419; Kelly v. Traction Co., 132 N. C., 368; Ammons v. R. R., 140 N. C., 200; Hansley v. R. R., 117 N. C., 565; Waters v. Lumber Co., 115 N. C., 648; Holmes v. R. R., 94 N. C., 318; Jackson v. Tel. Co., 139 N. C., 347; Remington v. Kirby, 120 N. C., 320; Wylie v. Smitherman, 30 N. C., 237; Duncan v. Stalcup, 18 N. C., 440. In Duncan v. Stalcup, supra, this Court said: “In looking into tbe books, we find tbe rule in tbis action to be tbat tbe jury are not restricted in tbeir assessment of damages to tbe amount of tbe mere pecuniary loss sustained by tbe plaintiff, but may award damages in respect of tbe malicious conduct of tbe defendant, and tbe degree of insult witb wbicb tbe trespass was committed. Tbe plaintiff is at liberty to give in evidence tbe circumstances wbicb accompany and give character to tbe trespass. In trespass quare clausum fregit tbe jury are not confined to tbe precise value of tbe subject-matter of damages, altbougb- they are not allowed to go out of tbe way to an unreasonable amount. In trespass to tbe person, tbe jury are permitted to punisb insult by exemplary damages.” In Stanford v. Grocery Co., supra, tbis Court said: “Tbis right to punitive damages does not attach, however, as a conclusion of law, because tbe jury have found tbe issue of malice in such action against tbe defendant. The right under certain circumstances to recover damages of tbis character is well established witb us; but, as said in Holmes v. R. R., 94 N. C., 318, such damages are not to bo allowed ‘unless there is an element of fraud, malice, gross negligence, insult, or other cause of aggravation in tbe act which causes tbe injury.’ ” In Ammons v. R. R., supra, it is said in tbe concurring opinion, wbicb is quoted witb approval in Stanford v. Grocery Co., supra: “Such damages are not allowed as a matter of course, but only when there are some features of aggravation, as when tbe wrong is done willfully or under circumstances of oppression, or in a manner wbicb evidences a reckless disregard of the plaintiff’s rights.”

Tbe various phases of tbe question are elaborately presented in 2 Sutherland on Damages (3 Ed.), secs. 391-403, and sus*39tains the doctrines enunciated by this Court. See, also, Hale on Damages, pp. 207 et seq.; Smith v. Bagwell, 15 Fla., 117; Chiles v. Drake, 2 Met., 146; 74 Am. Dec., 406; Rath v. Eppy, 80 Ill., 283; Freese v. Tripp, 70 Ill., 496; Hauser v. Griffith, 102 Iowa, 215; Reddin v. Gates, 52 Iowa, 210; Ward v. Ward, 51 Iowa, 686; Jackers v. Borgman, 29 Kan., 109; Bactaker v. Staples, 27 Minn., 308; 38 Am. Rep., 395; Barr v. Moore, 87 Pa. St., 385; 30 Am. Rep., 367; Cole v. Tucker, 6 Tex., 266. In all of these cases the rule is recognized and accepted that even where the act causing the injury is criminal, yet the plaintiff, suing to recover damages, must show, in order to recover punitive or exemplary damages, malice, fraud, wanton or willful disregard of his rights, or other circumstances of recklessness or aggravation, unless the crime producing the injury requires proof of one of these elements to constitute the offense.

The only injury done to the plaintiff was the delay in the transportation of his raft. There was no evidence that defendant had any information that plaintiff had or would use the river for such purpose. As we have said, the evidence contains no one of the elements essential to support the claim for punitive-damages, and in the absence of such evidence, the sole fact that the act done by the defendant which caused the injury to plaintiff was a violation of the criminal law is not a sufficient foundation to support an allowance of punitive damages. His Honor should have directed the jury, upon the evidence, to answer the fifth issue, “Nothing.” The finding upon that issue is set aside, and the judgment below will be so modified, and judgment entered for the actual damages allowed by the jury, interest and costs; and, as so modified, it is affirmed. The costs of this appeal will be taxed against the appellee.

Modified and affirmed.