Boutwell v. Champlain Realty Co.

May 15, 1915

Reporters:: , ,
Before:: Watson

Watson, J.

It will be noticed by the statement of the facts in the bill that the plaintiffs’ lands are bounded on the west by lands of Kezer and Emerson; that “White River flows in a southerly direction along the westerly portion” of the plaintiffs’ lands; and that the portion of their farm alleged to have been damaged by the floating of logs on the river, is “adjacent to said river.” The import of the аllegations in these respects may or may not be the same, in legal effect, as a statement that their land is bounded on the west by the river, or that their west line or boundary is along the river. There is no allegation as to where the east line of Kezer and Emerson’s land is, with respect to the river. It was held in Quinn v. Valiquette, 80 Vt. 434, 68 Atl. 515, 14 L. R. A. (N. S.) 962, that the language used in equity pleadings is to be understoоd according to its natural import in the connection, and with reference to the subject-matter; that in equipoise, the construction is to be against the pleader, and that no intendments are to be made in favor of the pleader’s case which do not naturally result from the facts alleged. Applying this rule of construction to the language оf the bill, it can not be said that any part of the bed of the river is owned by the plaintiffs. As the ease stands on the bill, therefore, no part of the bed of White River is owned by the plaintiffs, but the river runs southerly along the westerly side of their land, but not over it.

One of the chief geographical features of the State is, that its eastern border is washed by the Connecticut River; and it is a matter of historical knowledge that the Connecticut has always been a public highway upon which, in early times, a portion of the merchandise and productions of the eastern part of the State, including lumber, were transported in boats or otherwise; and it is of common knowledge that in more recent times it has been used as a great public highway for the floating of logs to places further south in this State, and to places in the State of Massachusetts. These facts, therefore, are judicially noticed. Stephen’s Dig. Ev. (Chase’s Ed.) 170-172.

This Court will also take judicial notice that White River is one of the larger rivers of the State, is non-tidal, and empties into the Connecticut at Hartford, this State; but whether it is a boatable strеam in its natural state and therefore a public highway, especially as far up as the plaintiffs’ farm, is a question of fact not alleged in the bill, and of which judicial notice is not here taken. New England Trout and Salmon Club v. *87Mather, 68 Vt. 338, 35 Atl. 323, 33 L. R. A. 569. It was held in that case that boatable waters, within the meaning of the Constitution, are waters that are of “common passage” as highways; that the capability оf use by the public for the purposes of transportation and commerce, rather than the extent or manner of such use, affords the criterion by which the navigability of a river is to be determined; and that if it be capable in its natural state of being used for purposes of commerce, carried on in any mode, it is navigable in fact, and thereforе is in our law a public river or highway. In support thereof, the case of Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641, is noticed as a leading case on the subject, wherein the true test to be applied in such cases was held to be, whether the stream is inherently and in its nature, capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs; аnd that when a stream possesses such a character, the easement exists, leaving to the owners of the bed, all other modes of use, not inconsistent therewith.

While the general rule is, as stated in the New England Trout & Salmon Club case, that waters above the flow of the tide are, prima facie, private in use as well as in ownership, and the burden of showing that a particular stream is boatable, is on the person seeking to use it as such, (unless it be a case where the court will take judicial notice of that fact,) yet in the case at bar the bill alleges that in the year 1890, the General Assembly of the State of Vermont granted certain privileges on the river in question to the Fall Mountain Paper Company; that thenceforth to the time of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍commencement of this suit, that company and its successors floated logs on the river, claiming the right so to do under and by virtue of said enactment, which enactment is averred to be a public law. Counsel on both sides have treated this statute as public in character, in the discussion of the case, and consequently we treat it in the same way without considering whether it is so, and without regard to the real force of that particular averment.

By §1 of the act mentioned, (Laws of 1890, No. 179), the Fall Mountain Paper Company was “empowered to remove rocks, flood wood and other obstructions from the bed and banks of White Eiver and its tributaries, excepting the first, second, and third branches of said river, build piers for the purpose of attaching booms thereto and shall build proper sluices or aprons *88on dams to protect the same from damage, so as to facilitate the running of logs, ties, wood, timber or other lumber down said streams, and any other person or persons may use said streams for the purpose of floating logs, ties, wood, timber or other lumber upon the terms hereinafter named. And said Fall Mountain Paper Company and its sucсessors are empowered to enter upon the bed of said White River and its tributaries, except the three tributaries last named, for the above purposes, subject to the liability of paying, or tendering, all damages caused thereby in the manner hereinafter provided.” By §2, injuries or damages occasioned by the Fall Mountain Paper Compаny, or its successors, to land or property by reason of said improvements, shall be paid by the company or its successors, to the person or persons sustaining the damages; and if the parties cannot agree upon the amount of damages to be paid, said corporation shall prefer a petition to the judge of the probate court in the district in which the property is situated, who shall appoint three commissioners to hear and determine the matter; and if any damages shall accrue to a riparian owner by using the river or its tributaries, for the purpose of running logs, ties, etc., and the parties cannot agree upon the amount of such damages, the person or persons sustaining the damages may prefer a petition to the judge of the probate court for the appointment of commissioners to determine that question, and their decision in the matter shall be final and conclusive upon all parties. By §3, the Fall Mountain Paper Company and its successors are given the right to receive toll from аll persons running logs, ties, etc., over the portion of the streams on which money has been expended by them.

In Morgan v. King, 35 N. Y. 354, 91 Am. Dec. 58, it was said that if prior to legislative enactment, the stream was private in use as in property, the Legislature could not take away the rights of those who were then riparian owners, nor subject such rights to a public use, created or authorized by the act itself, without compensation. In Foster v. Stafford National Bank, 57 Vt. 128, a statute, authorizing and empowering the persons named “to make, maintain, and control gates at the outlet of Willoughby Lake for the purpose of saving the water in said lake,” but not to raise it “above the ordinary high-water mark of the last fifteen years,” was held to be unconstitutional upon the ground that no provision was made for the ascertainment and *89payment of the damages that might be occasioned by the entry upon and the occupation of the land of the defendant for the erection and maintenance of gates thereon, and the raising of the water in the lake. The court said that the Constitution limits the right to take private property to cases where necessity requires it for a public use; and then it can be taken only on making just compensation to the owner.. In the New England Trout & Salmon Club case, the court said that unless the waters in question were boatable, they were not public, but private, and the State had no jurisdiction over them. And it was there held that the statute then under consideration, in so far as it undertook to authorize the crossing of private lands to reach public waters, was unconstitutional, as authorizing the taking of private property for private use; that the right of eminent domain can never be exercised for a merely private purpose, however much the public utility may be subserved thereby. See also Adams v. Barney, 25 Vt. 225. But the Statutе of 1890 does not undertake to delegate the power of eminent domain, nor does it contain provisions touching elements essential to the exercise of that power: the rights granted involve neither ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the question of necessity for public use, nor compensation to riparian owners for private property taken for public use in the establishment of a public easement in the stream to which the act relates. Foster v. Stafford National Bank, noticed above.

It has been held that the Legislature can not make a stream navigable by declaring it to be so if in fact it is not. Olive v. State, 86 Ala. 88, 5 South. 4 L. R. A. 33; People ex rel. Ricks Water Co. v. Elk River Mill & L. Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. Rep. 125; Kamm v. Normand, 50 Or. 9, 91 Pac. 448, 11 L. R. A. (N. S.) 290, 126 Am. St. Rep. 698. And in Pound v. Turck, 95 U. S. 459, 24 L. ed. 525, it was held that if a stream which empties into one of the great rivers of the country, is -in fact navigable, the State may, for the purpose of developing thе use of it, authorize the improvement of the navigation, until legislation on the Subject by Congress. See also Falls Mfg. Co. v. Oconto River Improvement Co., 87 Wis. 134, 58 N. W. 257; Tewksbury v. Schulenberg, 41 Wis. 584; Mashburn v. St. Joe Improvement Co., 19 Idaho 30, 113 Pac. 92, 35 L. R. A. (N. S.) 824; Thompson v. Androscoggin River Improvement Co., 58 N. H. 108. In the case last cited, the court said there was nothing in the Constitution of the State, nor in the doctrines of the com*90mon law, to prevent the State or its agents from improving the navigation of the public rivers; and the mode and the extent of such improvements are to be determined by the Legislature.

No question is raised as to the validity of the Acts of 1890; but enough has been said in view of the holdings in the cases to which reference has been made, to justify us in treating White River as a boatable stream within the meaning of the law, in disposing of the case under consideration upon the demurrer; for otherwise that stаtute may be in violation of constitutional rights, and "if'a statute may or may not be, according to circumstances, within the limits of legislative authority, the existence of the circumstances necessary to support it must be presumed. Sweet v. Rechel, 159 U. S. 380, 40 L. ed. 188, 16 Sup. Ct. 43; Home Teleph. & Teleg. Co. v. Los Angeles, 211 U. S. 265, 53 L. ed. 176, 29 Sup. Ct. 50; State v. Peet, 80 Vt. 449, 68 Atl. 661, 14 L. R. A. (N. S.) 677, 130 Am. St. Rep. 998.

Considering the stream as boatable in its natural state, the public, as well as the defendants under the provisions of the Acts of 1890, hаve the right to use it as a public highway for the floating of logs; and the rights of the riparian owners are subject to such use, if reasonably exercised. Carter v. Thurston, 58 N. H. 104, 42 Am. Rep. 584; Collins v. Howard, 65 N. H. 190, 18 Atl. 794; Connecticut River Lumber Co. v. Olcott Falls Co., 65 N. H. 290, 21 Atl. 1090, 13 L. R. A. 826; Dwinell v. Veazie, 44 Me. 167, 69 Am. Dec. 94; Lancey v. Clifford, 54 Me. 487, 92 Am. Dec. 561.

The test of reasonableness, the want of which is negligence, is the conduct of a careful and prudent man in like circumstances. This is but the exercise of ordinary care, and is the true measure of requirement in such eases. The general rule is, that it is the duty of one driving or floating logs on a navigable stream to exercise ordinary care to prevent the same from doing damage ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the property of riparian owners; that such duty requires one to take this degree of care to prevent logs put into the stream from creating jams and obstructions sufficient to force the waters out of their natural course, to the injury of riparian property; and that it is not confined to the time of actual driving, but exists at all times while the logs are in the stream. Mandery v. Mississippi & R. River Boom Co., 105 Minn. 3, 116 N. W. 1027; Coyne v. Mississippi & R. River Boom Co., 72 Minn. 533, 75 N. W. 748, 41 L. R. A. 494, 71 Am. St. Rep. 508; Field *91v. Apple River Log Driving Co., 67 Wis. 569, 31 N. W. 17; Mitchell v. Lea Lumber Co., 43 Wash. 195, 86 Pac. 405, 10 Ann. Cas. 231, 9 L. R. A. (N. S.) 900; White River Log, etc. Co. v. Nelson, 45 Mich. 578, 8 N. W. 587; Hot Springs Lumber & Mfg. Co. v. Revercomb, 106 Va. 176, 55 S. E. 580, 9 L. R. A. (N. S.) 894.

The bill alleges that the Champlain Realty Company, by its agents and servants, entered upon the plaintiffs’ said lands in the years of 1912 and 1913, and removed the logs depоsited thereon by reason of large jams of logs carelessly and negligently suffered and permitted by that company to form in the river below said lands, whereby the water was dammed up, set back, and caused to overflow them, etc., and in so doing dug up the soil and thereby greatly injured the land. A person using a boatable stream for the floating of logs is not by law rеquired to build embankments or other structures along the banks of riparian owners to protect them from wearing or washing away, or against injury from logs. Hot Springs Lumber & Mfg. Co. v. Revercomb, and Field v. Apple River Log Driving Co., both cited above. If the logs, flood wood, etc., were deposited on the lands of the plaintiffs by reason of the negligence of the defendants, they are responsible for the resulting damages; but on the other hand if the logs, flood wood, etc,, were deposited thereon without the fault of the defendants, the loss then suffered by the plaintiffs is dmnnum absque injuria, and affords no ground of action against the defendants.

By the common law, every owner of cattle is bound to keep them within his own possession, and if he fails to do so, he is liable for their trespasses upon the lands of other persons, whether inclosed or not. Hurd v. Rutland & B. R. Co., 25 Vt. 116; Keenan v. Cavanaugh, 44 Vt. 268. But an excеption to this rule has always been recognized in favor of a person lawfully driving domestic animals along a highway, if such animals, without fault on his part, escaped from his control upon adjoining unfenced lands. In such case if the animals be pursued and promptly brought back, the owner is not liable for the involuntary trespass on the land, nor for the herbage they may crop, raptim et sparsim, as they go along. Such casual trespassing is considered an inevitable incident to the right to use the highway. Mr. Justice Holmes, in his work on the Common Law, at page 118, says, “that if a man be driving cattle through a town, *92and one of them goes into another man’s house, and he follow him, trespass does not lie for this,” citing authorities, among which is Popham, at page 162, where Justice Doderidge says the law is so “because it (the act) was involuntary, and a trespass ought to be done voluntarily, and so it is injuria, and a hurt to another, and so it is damnum.” 1 R. O. L. §42; Dovaston v. Payne, 2 H. Bl. 527, 2 Smith L. C. 213; Stackpole v. Healy, 16 Mass. 35, 8 Am. Dec. 121; Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377; McDonnell v. Pittsfield & North Adams R. R. Corp., 115 Mass. 564; Amsteim v. Gardner, 132 Mass. 28, 42 Am. Rep. 421; Mills v. Stark, 4 N. H. 512, 17 Am. Dec. 444; Tonawanda R. Co. v. Munger, 5 Denio. 255, 49 Am. Dec. 239; Wood v. Snider, 187 N. Y. 28, 79 N. E. 858, 12 L. R. A. (N. S.) 912.

In the case of The Eleanor, 2 Wheat. 345, 4 L. ed. 257, the Federal Supreme Court said: “And whatever may be the injury that casually results to an individual from the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍act of another while pursuing the reasonable exercise of an established right, it is his misfortune. The law pronounces it damnum absque injuria, and the individual from whose act it proceeds is liable neither at law nor in the forum of conscience. And the principal right necessarily carries with it also the means essential to its exercise.” In Sabin v. Vermont Central R. Co., 25 Vt. 363, where by necessary blasting of rocks- done by the defendant in the construction of its road, fragments of rock were unavoidably thrown onto the adjoining land оf the plaintiff. Thereon the court said: “As we have intimated, it is clear, that for blasting at improper seasons, thereby causing unnecessary damage to crops, and for doing it in an imprudent or unskillful manner, or for not removing the stone in due time, — and that must be considered the shortest time in which it can be done, and with the least injury to the land,- — the party is entitled to his remеdy in the proper form. But if the defendant’s charter confers the right to do the act, of which, as we have said, there can be no doubt, it seems to us impossible to allow the action of trespass for the original act, thereby treating it as unlawful. And it is too well settled, to be now brought in question, that no mere omission, or want of care or skill, in doing a lawful act, will render such act a trespass by relation."

We think the rights of the owners of logs washed upon adjoining land without their fault, are governed by the same principles; and that the rule is correctly stated in the New *93Hampshire case of Carter v. Thurston, (cited above,) as follows: “And the right of the public and of the defendants to the use of this stream for the purpose of floating their logs, involves the right of going upon the land of riparian owners for the purpose of reclaiming the logs that may have been washed ashore. Such incidental necessity neither enlarges nor diminishes the natural capacity of the stream, in a legal sense, nor in any way affects its public character. This right of pursuit and reclamation rests upon the same natural right as that which permits the owner of cattle to pursue into an adjoining field and recover his beasts straying from the highway; but in the pursuit and recovery of his cattle or his logs, the owner must do no unnecessary damage, and is responsible for any excess dr abuse of his right. This right of reclaiming stranded logs is a common law right, a natural right, incident to the right of navigation.” Since the only liability оf the defendants, if any, is based upon/their failure to exercise the requisite degree .of care in pursuing a lawful right/im action at law to recover the damages proximately consequent on the breach of such legal duty affords the plaintiffs a full, complete, and adequate remedy; and having such remedy, they can not come into a cоurt of equity. Currier v. Rosebrooks, 48 Vt. 34; Durkee v. Durkee, 59 Vt. 70, 8 Atl. 490.

It is urged, however, that this objection to the bill cannot be sustained, because the averment that the plaintiffs have no complete and adequate remedy at law is admitted by the demurrer, in support thereof relying upon the holding in Weed v. Hunt, 76 Vt. 212, 56 Atl. 980, and same case, 81 Vt. 302, 70 Atl. 564. In that ease the question was whether the oratrix had a remedy at law in the State of Connecticut; and it was held оn demurrer (in the answer) to the bill, that we were bound by the averment that she had not, as we could not take notice of the Connecticut statute recited in the answer, from which it seemed to the contrary. But this is not the general rule applicable when the court can take judicial notice of public law, not set forth in' the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍bill. Lord Bedesdale, speаking of the part of the bill intended to give jurisdiction of the suit to a court of equity by a general averment that the acts complained of are contrary to equity, and tend to the injury of the complainants, and that they have no remedy, or not a complete remedy, without the assistance of a court of equity, says this averment must be supported by thе case shown in the bill, from which it must be apparent that the *94court has jurisdiction. Mitf. Eq. Pl. (Tyler’s Ed.) 141. Mr. Justice Story says this jurisdictional clause is wholly unnecessary, for it will not of itself give jurisdiction to the court; that if the case made by the bill be otherwise clearly of equitable jurisdiction, the court will sustain it, although the clause is omitted; that if, on the contrary, the case so made be not of equitable jurisdiction, the bill will be dismissed, notwithstanding such an averment is made in it; for the court can not assume jurisdiction, except upon eases and principles which clearly justify its interposition. Story Eq. PL §§34, 473.

Pro forma decree affirmed and cause remanded.