Bayzer & Shepherd v. McMillan Mill Co., 105 Ala. 395

Bayzer & Shepherd v. McMillan Mill Co.

105 Ala. 395 | Ala. | 1894

HARALSON, J.

The question as to what constitutes a navigable stream, as contradistinguished from a private one, has from an early day been the subject of many decisions of this court. This stream is above tide water. In det-erming the navigability of such streams, the test is to be found in their navigable capacity. As was said in The Daniel Ball, 10 Wall. 557, “Those rivers must be regarded as public, navigable rivers in law, ■ which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

In Morrison v. Coleman, 87 Ala. 657, which is one of our latest adjudications on the subject, this court, after a review of the authorities; announced its conclusion as follows : “We declare, as the result of our own rulings and of the weight of authority, that a fresh water stream above tide water is navigable and a public highway, when, and only when, it is susceptible of being used, in ordinary condition, for a highway of commerce, over which there may be trade, travel, transportation, or valuable floatage. We are not to be understood as afiiriuing, that to be a navigable stream or public highway, it must be susceptible of the enumerated uses for the entire year. Most inland streams contain a greater volume of water in winter than in summer. Our precise meaning is, that for a season or considerable part of the year, it *398must contain that depth of water, which fits it for such transportation. It excludes all those streams which ‘ have the requisite volume of water only occasionally, as the results of freshets, and for brief periods, as unnavigabie, and private property.” Again it was said in Rhodes v. Otis, 33 Ala. 578: “In determining the character of a stream, inquiry should be made as to the following points : whether it is fitted for valuable floatage ; whether the public or only a few individuals are interested in transportation; whether any great public interests are involved in the use of it for transportation ; whether the periods of its capacity are sufficiently long to make it susceptible of use beneficially to the public ; whether it has been previously used by the people generally, and how long it has been so used ; whether it was meandered by the government surveyors or included in the surveys; whether, if declared public, it will probably in future be of public use for carriage. And in the application of these inquiries to the facts of the case, it is to be remembered that the onus probandi is upon the party claiming that the stream above tide water is public.” In the case last cited, many reasons are stated in the interest of the public, why such streams should not be held to be public : “Every mill-dam on any of those creeks, every bridge over them, every water gap, and every foot-log, could be treated as a nuisance, at the option of any individual who might think proper to go upon the stream and prepare a raft of timber to await a rise from a freshet; to float his raft down; and he might sue the owners of mills for all damage sustained in consequence of the interference of the same.”

Again, it has been held, that a creek, not affected by the ebb and flow of the tide, which had never been declared a public highway by legislative authority, and was not treated as a navigable stream by the United States surveyors, is not navigable or public, though during twenty years, keel-boats, loaded with cotton, had' been several times floated, and timber and lumber rafted down it during the winter season, but during the summer, there was not sufficient water for these purposes.—Ellis v. Carey, 30 Ala. 725; Lewis v. Coffee County, 77 Ala. 192.

When the facts are ascertained, whether a stream is navigable or public is a question of law. In this case, *399the facts bearing on this inquiry are not in conflict. It does not appear that Pigeon Creek has ever been utilized for any other kind of transportation of commodities for market, other than saw logs and lumber, and this at spasmodic and occasional periods in the winter or spring as the result of freshets ; or that for any considerable part of the year, did the depth of its water fit it for such transportation ; or that any boats, keels or lighters, propelled by steam, sail, pole or oar had ever navigated its waters ; or that it was exempt from the public surveys of the Government, as a public stream, or declared to be such by the legislature of the State. Nor was there any evidence of the character and extent of the forests in the country through which it ran, and the number of people engaged in the mill or rafting business, so that it might be seen to what extent it had been or might be utilized in the future for purposes specified in the complaint. There does not appear that there was ever, at any time, such a state of facts as, under the foregoing and our other adjudications, would authorize us to declare this to be a public or navigable stream.—Bullock v. Wilson, 2 Port. 436; Peters v. N. O., M. & C. R. R. Co., 56 Ala. 528; Walker v. Allen, 72 Ala. 457; Sullivan v. Spotswood, 82 Ala. 163; Harold v. Jones, 86 Ala. 274.

The plaintiffs based their recovery on the allegation, that this creek was, at the time of the damage complained of, a common and public highway for the purposes specified. Their right of recovery, in any event, is rested on their making good this averment, which they have failed to do. The general charge for defendant, if requested, might have been well given; and since plaintiffs, in no event, could recover, it is unnecessary to consider the errors assigned. If any existed, they were harmless.

Affirmed.