Banks v. Frazier

111 Ky. 909 | Ky. Ct. App. | 1901

Opinion op the court by

CHIEF JUSTICE PAYNTER

Reversing.

The appellant, declining to plead further after the court had sustained a demurrer to his petition, prosecuted this appeal from the order dismissing his petition. In considering the question involved we will assume the averments of the petition are true. Cowan creek is a tributary of the North fork of Kentucky river. The appellant owns a tract of land containing seventy-ñve acres, which is situated on both sides of Cowan creek. He owns a small grist-mill, built in and across the creek. He has erected a dam across it about four feet high. On one side of the creek a precipitous cliff forms one bank of it. On the opposite sid'e the appellant has erected a levee some distance above the mill. The purpose of the dam is to accumulate water to run the mill. There is a very narrow valley at the point where the mill is .erected. A little distance from the bank is the dwelling of the appellant, together with other necessary buildings. Between the'mill and the dwelling there is a spring, which is used for drinking water and other domestic purposes. The land between the bank of the stream and the dwelling is almost as low as the bed of the stream. If the creek should overflow its banks at the point in question it would do so on the side next to the house, because-the cliff on the opposite side would be a barrier to the-overflow on that side. Cowan creek is about six miles long. The plaintiff’s land is situated about four milesfrorn the head of the stream. The appellee is erecting a large splash dam, about two miles above the, plaintiff’s property, in Cowan creek, with the view of accumulating-a large volume of water. A great many logs of various kinds are being placed above the dam, so that, when the freshets come, the appellee may be able to float them down. The appell'eie is also proposing to erect another dam of the same kind about a mile above the plaintiff’s premises, for the same purpose for which he has erected the other d'am. Cowan creek, even in the highest freshets, does not afford sufficient water for floating saw logs. They could -only be floated down the stream when an unusual quantity of water is collected by means of a splash dam, and then by the assistance of men going along the banks of the stream, aiding the current to carry them down. It is not a navigable stream. To accumulate water by splash dams, and thus float the logs down the steam, it will force the water over t'hie banks of the stream through plaintiff’s land, destroy his bottom' land and his-spring, and imperil his dwelling. It would either wash the mill away, or change the channel at that point and leave it on dry land. It would thus result in practically destroying appellant’s property, and to such an extent that he could not be compensated in money. He seeks to enjoin the "appellee from accumulating the water in- a large volume and floating the logs down the stream in the manner stated.

The first question arises, what are the rights of the parties where the facts exist as averred in the petition? The averment of the petition, as we have said, is' that this stream can not be used for the purpose of floating logs, except by the use of artificial means. In Murray v. Preston 106 Ky., 561 (21 Ky. L. R., 72) (50 S. W., 1095), the court had udder consideration what it took to constitute a navigable or floatable stream, and .accepted Judge Cooley’s definition of it in Booming Co. v. Speechly, 31 Mich., 336, (18 Am. Rep., 184), which is, to wit: The doctrine, then, which we derive from the cases, is that a stream may be a public highway for floatage when it is capable, in its ordinary and natural stage in the seasons of high water, of valuable public use.” A stream, then, that is not capable, during freshets, unaided by artificial means, to float saw logs, is not a public highway for that purpose. It results- from this that the appellant owns the land on both sides of the stream, including the bed of it. Should the appellee be permitted to float Ms logs down the stream in the manner described in the petition, it would result in the destruction of the appellant’s property. A court of equity will not interfere to restrain one from committing a trespass when there is a complete remedy at law, except where the trespass amounts to taking the substanee of the complainaint’s property. In that character of case a court of equity will enjoin the party from committing the wrong. In this case the appellant owns a small body of land, and has a home upon it and a spring used and needed for family purposes. The banks of the creek are sandy at this place, and the valley, as well as the spring, dwelling, and mill, might be destroyed. He could not receive compensation that would reimburse him for the loss he would sustain. From the averments of the petition, it is his homestead, and be has1 located upon it for the comfort and support of his family. If his dwelling-, Spring, and mill are destroyed, the balance of his farm will be practically useless. It would probably necessitate him establishing a home elsewhere, besides destroying the little business which he has established by tbe erection of his mill. We think, in a case like this, that an injunction is the proper remedy. But it is suggested that the large timber interests will be greatly interfered with if the property owner has within his power the right to enjoin the use of a stream in the Manner referred to. That may he true; but the mere fact that one may have large property interests, and be greatly inconvenienced because he can not disregard the rights of others, is no reason why a court of equity should not extend its strong arm to protect the one having small property interests. When one buys timber upon a stream like Cowan creak, he does not acquire the right to .disregard the law of the land by taking private property for private purpose's.

The judgment is reversed, for proceedings consistent with this opinion.