| W. Va. | Nov 30, 1915
In this action, commenced before a justice, for the recovery of the amount of two notes payable to plaintiff, executed by A. G-. Griffin and "W. B. Nutter, the latter as surety, the jury returned a directed verdict for defendant Nutter, 'and thereon the court entered the judgment brought here on writ of error.
By contract dated July 9, 1910, plaintiff granted to Giffin the exclusive privilege of removing sand from the bed of the Buckhannon river, in so far as that stream extended along or through plaintiff’s land, in consideration of six cents for each cubic yard removed, with'the provision therein expressed that at least 300 yards should be removed each month, and paid for at that rate whether so removed or not; and Burner therein reserved the right to annul the contract upon Giffin’s failure to comply therewith. No provision was made for credit on other operations under the agreement. The notes involved were made in lieu of cash payment for sand not removed under the privileges so granted. Indeed, Giffin failed to exercise any privilege or right conferred by the contract.
Whatever may have been the mental condition of the principal at the date of the contract or notes, a question as to which the proof is meager, he then was engaged in the active pursuit of his usual occupation, though before and since he may have been, and perhaps was, confined as a patient in a hospital for the insane. If so, defendant presumably was aware of the necessity for such confinement. They lived in the same community, and knew each other as friends and acquaintances. Their relations were intimate and cordial. Besides, Giffin’s contractual incapacity may have induced plaintiff to require surety for payment of the notes. Indeed, defendant virtually admits his credit was pledged because of a desire on his part to render some assistance to a friend unfortunately afflicted. He did not in terms so state, but that inference is deducible from his testimony.
Was there a total failure in the consideration for which the notes were executed? This defense was predicated in part upon the theory that, though in the river bed the sand was abundant, easily accessible and apparently valuable as building material, a' use to which it was to be devoted, and though Giffin had the right to remove and sell it, he did not remove or sell any of it. This position we think is not defensible. The mere statement shows it to be untenable. Plaintiff in nowise obstructed the exercise, of the privilege granted. The contract subjected his land to an easement of way to and from the river, and by no default of his did he prevent the use and enjoyment of the privileges conferred by his agreement.
But the question on which was based the instruction to find for defendant was whether or not the Buckhannon river is a navigable stream, and as such exclusively under the control
There are three classes of navigable streams in this country. The first class embraces those legally deemed navigable in the technical sense of the term, though they may not be used or usable for the purposes of -navigation. They are usually denominated tidal streams, because affected by the ebb and flow of the tides. The navigable non-tidal or fresh water streams, constituting the second class, and generally those of the first class, serve as the medium for transportation of commercial products to market. They are public highways; and, by reason of their public character and uses, when matter of common knowledge, courts may take judicial notice that they are navigable; but not so of the third class, consisting of streams which are not technically navigable, and are termed “floatable” because capable of carrying logs and rafts and other similar articles of commerce. As these distinctions are clearly noted and amply discussed by Judge Green in Gaston v. Mace, 33 W. Va. 15, 20, nothing further need be said of them, except that manifestly the Buekhannon river does not fall within any classification authorizing the assumption of judicial knowledge of its navigability. Its nature, character and uses are not disclosed sufficiently to justify any particular conclusion .concerning its navigability. As was said in Gaston v. Mace, supra, quoting approvingly from Brown v. Chadbourne, 31 Me. 9" court="Me." date_filed="1849-07-01" href="https://app.midpage.ai/document/brown-v-chadbourne-4928576?utm_source=webapp" opinion_id="4928576">31 Me. 9, in the case of a fresh water stream the presumption arises, in the absence of proof to the contrary, that it is private property in*so far as it bounds or runs through the lands of plaintiff, and on defendant rests the burden of establishing by satisfactory proof that it is navigable, or in its natural condition has sufficient water capacity to float logs or timber rafts.
Gould on Waters, §112, says by the common law rule a river is prima facie navigable only so far as the tide ebbs and flows in it, and, in the case of doubt, the burden of proof is upon- those who allege navigability above that point, citing Rhodes v. Otis, 33 Ala. 578" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/rhodes-v-otis-6506427?utm_source=webapp" opinion_id="6506427">33 Ala. 578, and other cases. 1 Farnham on
The conclusion necessarily follows, from what has been said, that defendant can not escape liability on the notes by pleading the incompetency of his principal due to his mental condition; or the failure of the latter to exercise the privileges conferred by the contract out of which the notes arise; or the subsequent annulment thereof by plaintiff, as therein allowed; or the assumed nature and character of the river in question; and that the judgment, being plainly erroneous, must be reversed and a new trial awarded plaintiff. Such will be the effect of the order entered here.
Reversed, and new trial awarded.