Commissioners of Burke County v. Catawba Lumber Co.

20 S.E. 707 | N.C. | 1894

Lead Opinion

MacRae, J.:

In Gwaltney v. Timber Co., decided at this term, and previously considered in 111 N. C., 547, we have carefully examined the subject involved in this controversy, and approved the issue framed by his Honor establishing that which is necessary to create an easement for the purposes of floatage in the non-navigable streams of this State. We repeat: “It is not necessary, in order to establish the easement in a river, to show that it is susceptible of use continuously during the whole year for the purpose of floatage, but it is sufficient if it appear that business men may calculate with tolerable regularity as to the seasons the water will rise to and remain at such a height as will enable them to make it profitable to use it as a highway for transporting logs to market or to mills lower down.” We approved the instruction : “ If the freshet should arise, from natural rainfall, for a sufficient period to make it useful to the public, it would be considered a floatable stream. Temporary rise, passing quickly down, is not sufficient to make a stream float-able, and would not be sufficient if the freshet should continue up for even two or three days and be reasonably expected every year.” To apply these principles to the present case: His Honor has carefully found the facts as to the manner of floating logs down these streams on ordinary water, by a kind of improvised slack-water navigation, and by rolling the logs over the shoals. He has also found the manner adopted by the defendant of banking large numbers of logs along the streams that they may be carried down at the will of the current, in times of freshet, and without further assistance or direction, and that these rivers are wide and shallow streams, with frequent shoals, and it fully appears that they are useless for floatage purposes in ordinary water. While the water is higher in the winter than in the summer, the increase in the depth of the streams occasioned by the rainfall, and sufficient to float logs, occurs eight or ten times each year, and the water subsides in twenty-four or forty-eight hours. We do not concur in the conclusion of law reached by his Honor on the facts found. It is manifest that this method of transportation is confined to the occasions of rapid rise and fall of the streams, advantage of which must be taken by previous preparation for freshets, and without power to control the timber when carried off by the current.

We are of the opinion that this floatability on the occasional and tolerably regular rises of the river, must depend on more than a rapid freshet, subsiding as rapidly. These streams “ are entirely the subject of private ownership, and are generally included in the grants of the soil, and the owners may make what use of them they think proper, whether it be for fishing, milling, or other lawful trade or business. The only restriction upon this right of ownership arises, ex necessitate, from the nature of running-water, and it is that the owner shall so use the water as not to interfere with the similar rights of other proprietors above or • below him, on the same stream.” State v. Glenn, 7 Jones, 321.

Even if the streams were of such a character as to give the public an easement for floatage upon them, we should not hold that this right could be exercised without due care for the avoidance of injury to the interests of the riparian proprietors and the owners of the soil beneath the bed of the stream.

And on the other hand, it would seem that if these were floatable streams in which the public had an easement for transportation, it would be the duty of the County Commissioners, certainly in the absence of express authority to the contrary, to so construct the bridges on their highways as to permit the use of the rivers for the purposes of floatage.

Being of the opinion that, upon the facts found, Catawba and Johns rivers, in Burke County, at the points where the said bridges are situate, are not subject to an easement in the public for the floatage of logs, we declare that there is error in the dissolution of the restraining order. The injunction should have been made perpetual. We think, also, that under the general powers granted by section 704 of The Code to the County Commissioners, “ to sue and be sued in the name of the Board of Commissioners,” they had the power to bring this action for an injunction. Por the recovery of damages for injury to the bridges, the statute, section 2055 of The Code, provides the remedy.

If the public interest shall at any time require the opening of these streams for floatage, and the raising of the county bridges, the matter is entirely in the hands of the Legislature, subject to prudent constitutional restrictions as to vested rights. Reversed.

---

Concurrence Opinion

Avery, J.

(concurring): If it be true, as appeared from the testimony offered, and as was found by the Judge below, that neither the Catawba river nor Johns river afford sufficient water to float logs over the shoals that abound in the beds of both, except when they rise suddenly eight or ten times during every year, and continue at a sufficient height to carry the logs off for a period of from twenty-four to forty-eight hours, then neither of the rivers would fall within the definition of a floatable highway heretofore given by this Court. Gwaltney v. Lumber Co., 111 N. C., 547. The record in the case operates as an estoppel only upon the parties to the action, or those who who are in privity with them and are bound by the decree. As between the defendant company and every riparian proprietor who owns any portion of the bed of the Catawba or Johns rivers, it is still an open question whether the company can use the water passing over his land as a public highway, just as in Gwaltney v. Lumber Company the decree precludes the defendant from claiming the right to use so much of the bed of the French Broad river between Asheville and the State line as is owned by Gwaltney, and no more. The perpetual injunction must, therefore, be so drawn as to restrain the defendants from using the portion of said streams where the county bridges are situated, for the purpose of floating, and not any part of either river above or below such bridges. In Gwaltney’s case it seemed to have been admitted that so much of the French Broad river as was above the city of Asheville was a floatable stream. Non constat in our case, but that for long distances above the county bridges both the Catawba and Johns rivers may not be hereafter found to be floatable. Nothing, therefore, is settled by this judgment except that the defendants are to be forever enjoined from endangering the stability of the bridges mentioned in the pleadings by attempting to float logs over or under them. Whether it was erroneous, in the first instance, to hold that the rights of the public to use a stream as a highway should be passed upon, whenever a riparian proprietor should see fit to sue one so using it for trespass, is, if our former adjudications are to remain undisturbed, no longer a debatable question. The consequence may be that one mill-owner may, by a succession of findings by Court or jury, establish his individual right to use a stream as a public highway, notwithstanding the objections of riparian owners or county authorities along the whole distance, while another less fortunate litigant may establish by verdicts the right of the public to an easement in all but a single tract extending over the bed of the stream, and be driven to buy the right-of-way over that, or discontinue his business. Right or wrong, the law has thus been written, and we must adhere to it or modify it. In assenting to the opinion of the Court, I wish to exclude the inference that the right of any particular riparian proprietor along the Catawba or Johns river to the use of the bed of the stream in his front has been adjudicated, or that the defendant company is precluded from the right to use the water flowing over his land for transporting his logs. It has been long settled that a State may, by statute, regulate the manner of floating logs, even on larger navigable streams passing through its territory, without interfering with interstate commerce. In the exercise of this authority, Legislatures have enacted laws requiring that logs should be floated only in rafts. In the face of conflicting verdicts between different parties, it may be difficult to determine whether the public have an easement in any stream for the purpose of transportation. The power must reside somewhere to settle the question whether a watercourse is a floatable stream. We have seen that the suits between individuals do not determine the 'rights of the public. If the Legislature should enact a law providing that a company should have the privilege of floating logs along so much of a certain river as was not already subject to an easement as a floatable stream, would the Courts sanction the awarding of damages to alternate proprietors along its banks, because one jury declared it not a highway and assessed damages in the manner provided by law, while another found it succeptible of use as a channel of commerce?

While conceding that the conclusions in this case are in harmony with the opinions in the Gwaltney cases, I deem it proper to point out the quicksands towards which, it seems to me, we are tending, if no way can be devised of ascertaining the rights of the public in floatable streams, except by endless litigation with unsatisfactory and conflicting judgments.

---

Lead Opinion

In Gwaltney v. Timber Co., ante, 579, and previously considered in111 N.C. 547, we have carefully examined the subject involved in this controversy, and approved the issue framed by his Honor establishing that which is necessary to create an easement for the purposes of floatage in the non-navigable streams of this State. We repeat: "It is not necessary, in order to establish the easement in a river, to show that it is susceptible of use continuously during the whole year for the purpose of floatage, but it is sufficient if it appear that business men may calculate with tolerable regularity as to the seasons the water will rise to and remain at such a height as will enable them to make it profitable to use it as a highway for transporting logs to market or to mills lower down." We approved the instruction: "If the freshet should arise, from natural rainfall, for a sufficient period to make it useful to the public, it would be considered a floatable stream. Temporary rise, passing quickly down, is not sufficient to make a stream floatable, and would not be sufficient if the freshet should (596) continue up for even two or three days and be reasonably expected every year." To apply these principles to the present case: His Honor has carefully found the facts as to the manner of floating logs down these streams on ordinary water, by a kind of improvised slack-water navigation, and by rolling the logs over the shoals. He has also found the manner adopted by the defendant of banking large numbers of logs along the streams that they may be carried down at the will of the current, in times of freshet, and without further assistance or direction, and that these rivers are wide and shallow streams, with frequent shoals, and it fully appears that they are useless for floatage purposes in ordinary water. While the water is higher in the winter than in the summer, the increase in the depth of the streams occasioned by the rainfall, and sufficient to float logs, occurs eight or ten times each year, and the water subsides in twenty-four or forty-eight hours. We do not concur in the conclusion of law reached by his Honor on the facts found. It is manifest that this method of transportation is confined to the occasions of rapid rise and fall of the streams, advantage of which must be taken by previous preparation for freshets, and without power to control the timber when carried off by the current.

We are of the opinion that this floatability on the occasional and tolerably regular rises of the river must depend on more than a rapid freshet, subsiding as rapidly. These streams "are entirely the subject of private ownership, and are generally included in the grants of the soil, and the owners may make what use of them they think proper, whether it be for fishing, milling, or other lawful trade or business. The only restriction upon this right of ownership arises, ex necessitate, from the nature of running water, and it is that the owner shall so use the water as not to interfere with the similar rights of other proprietors above or below him, on the same stream." S. v. Glenn, 52 N.C. 321.

Even if the streams were of such a character as to give the public an easement for floatage upon them, we should not hold that this (597) right could be exercised without due care for the avoidance of injury to the interests of the riparian proprietors and the owners of the soil beneath the bed of the stream.

And on the other hand, it would seem that if these were floatable streams in which the public had an easement for transportation, it would be the duty of the county commissioners, certainly in the absence of express authority to the contrary, to so construct the bridges on their highways as to permit the use of the rivers for the purposes of floatage.

Being of the opinion that, upon the facts found, Catawba and Johns rivers, in Burke County, at the points where the said bridges are situate, are not subject to an easement in the public for the floatage of logs, we declare that there is error in the dissolution of the restraining order. The injunction should have been made perpetual. We think, also, that under the general powers granted by section 704 of The Code to the county commissioners, "to sue and be sued in the name of the board of commissioners," they had the power to bring this action for an injunction. For the recovery of damages for injury to the bridges, the statute, section 2055 of The Code, provides the remedy.

If the public interest shall at any time require the opening of these streams for floatage, and the raising of the county bridges, the matter is entirely in the hands of the Legislature, subject to prudent constitutional restrictions as to vested rights.

Reversed.