Just prior to the institution of this action the plaintiff procured a warrant to be issued against the defendant, Kirkland, charging him with larceny of lumber from said flume as same was being transported across his land, the defendant being bound to court thereon; and thereafter the portion of the flume crossing the defendant’s land fell down, and when plaintiff’s hands undertook to repair same they were met by the defendant, who forbid them to go upon the property, and the plaintiff instituted this action.