202 P. 1067 | Idaho | 1921
This is a case of cross-appeals. Burrus sued the company alleging that he was the owner of certain land and a dwelling-house fronting on Lake Coeur d’Alene; that the company negligently left some boom sticks insecurefy attached at a point on said lake not far from his dwelling-house; that by reason of said boom sticks being left in an insecure condition the winds and waters caused them to be driven and forced against his dwelling-house, dock and gasoline boat, to his damage; that the company permitted its boom sticks to remain along the shores of the lake
The only assignment of error by the company, which it is necessary for us to consider, is that the court erred in submitting to the jury the issue of damages for maintaining boom sticks on Burrus’ meadow, for blocking up the channel, and depriving him of ingress and egress. The only assignment of error by Burrus, which it is necessary for us to consider, is that the court erred in finding that the boom sticks were not maintained on his meadow, and said channel was not situated on his premises.
We will consider first Burrus’ cross-appeal. The evidence clearly supports the findings of the court that the so-called meadow, was submerged, and that the waters above it, and the channel in question, constituted navigable waters of the lake; that the boom sticks of the company in those waters did not unreasonably interfere with the navigation of the lake, nor with Burrus’ right of ingress and egress. It appears that prior to 1906 Burrus grew hay on the so-called meadow; that about that time the Washington Water Power Company raised the level of the lake by making a dam; that since that time the land has been covered by water deep enough to be navigable.
“The title to beds of navigable streams of this state does not pass to the patentees of the United States by the sale of lots or lands bordering on such streams.
“Where a permanent dam was erected in a navigable stream, causing the waters above it to be raised, the rights of riparian owners above the dam, as against persons entitled to use the stream, are to be construed with reference to the changed conditions, and not as they existed before the dam was built.” (Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185.)
“If a person artificially raises the level of the waters of a navigable lake, the public rights therein are correspondingly extended so long as such artificial level is maintained.” (Pewaukee v. Savoy, 103 Wis. 271, 74 Am. St. 859, 79 N. W. 436, 50 L. R. A. 836.)
The decree denying injunctive relief should be affirmed.
Turning now to the company’s appeal, the issue whether Burrus’ house, boat and dock were injured by its alleged negligence in failing to properly secure its boom sticks was properly submitted to the jury, and there was evidence to sustain a verdict for damages on that ground. The issue whether Burrus’ right of ingress and egress to and from his house was interfered with by certain loose boom sticks which were washed ashore was also properly submitted to the jury. But the court also submitted to the jury the issue whether Burrus was entitled to recover damages on the ground that the company maintained boom sticks on his •meadow, and thereby blocked his channel, and deprived him of his right of ingress and egress. It is impossible to tell how much of the damages were awarded on the first two grounds and how much on the third. It appears, however, that all the damages were not awarded on the first two, and that the third must have entered into the verdict. In so far as the verdict was predicated upon the third ground it was in conflict with the findings of the court. Those findings being clearly borne out by the evidence, it follows that
The decree of the court on the equitable issues is affirmed, the judgment on the verdict is reversed, and the cause remanded for a new trial in accordance with the views in this opinion. Costs awarded to the appellant Edward Rutledge Timber Company.