38 La. Ann. 752 | La. | 1886
Poché, J.
This suit involves the power of the police jury of Bossier parish to close Mack’s bayou, which is a stream flowing from Red river and emptying through several other bayous into lake Bistineau in said parish.
Plaintiffs in injunction are residents of Minden, a town in Webster, an adjoining parish, situated a short distance from the head water navigation of Doreheat bayou, which empties into lake Bistineau- at its northeastern extremity.
Alleging that Mack’s bayou is a navigable stream, and that it is, in addition, one of the principal sources of water for, or feeders of, Lake Bistineau, which affords to this section of country the only navigable highway to Red river, and through it to the great markets of the country and of the world, they claim the legal right to prevent the closing of the same.
They are appellants from a judgment, based on the verdict of a jury, dissolving their injunction and dismissing their action.
Tiie defence is a denial that Mack’s bayou is a navigable stream within the legal meaning of the term, and the consequent legal authority in the police jury to exercise absolute control over it for the purposes of public highways, by means of bridges constructed over it or of embankments erected in it.
The pivotal question in this case, therefore, consists in ascertaining whether the bayou is or not a navigable stream. All the sources of
Section 2743 of the Revised Statutes of 1870, par. 13, empowers police juries to “cause any water course which is not navigable (italics are ours) to be filled up for the purpose of carrying the public highways over the same; provided that no injury be thereby occasioned to the neighboring inhabitants.”
The proviso of Act 87 of 1882 confers the power to certain corporations with the consent of police juries where navigation terminates, and of police juries of adjoining parishes interested, to bridge without a draw such waters within ten miles of the terminus of high water navigation on watercourses which cannot be navigated except at high water.
Section 1 of Act 84 of 1884 has exclusive reference to. the control of police juries over completed levees erected under the general power of the State, in keeping with the levee system which prevails therein, and over public roads within the limits of their respective parishes.
It appears that no provision in any of these enactments can be construed as conferring the power on police juries to interfere with, or obstruct in any manner, navigation on any navigable watercourse in this State, and much less to close, as proposed in this case, any such stream.
And we may add that the attempt of the State to delegate such power to police juries, or to any other State functionary or authority, would be defeated on proper showing by the courts, as violative of the letter and spirit of the Act of Congress by which Louisiana was admitted into the Union. Stat. at large, vol. 2, pp. 642 and 706.
Our reports are somewhat meagre of information on this important subject. We find but two cases which have some bearing on this question.
In the case of Boykin and Lang, 13 Ann. 129, this Court found that while bayou Black, in the parish of Terrebonne, was a navigable stream by nature, its use for commerce had been at first impeded by the accumulation of timber within its banks, and that by the subsequent removal of those impediments, the stream has lost its utility for navigation by the too rapid discharge of its waters. Iicnce the court sanctioned as a legal means to enhance the navigation of the bayou the construction of locks by an individual, and maintained his consequent right to charge and collect tolls in compensation therefor. The court rested its conclusions very guardedly on the fact well shown that the
In the case of Ingram vs. Police Jury of St. Tammany, 20 Ann. 226, the court enjoined the defendant from erecting a bridge across the Bogue Palia river, because the construction of the bridge would impede navigation on a navigable stream. The injunction was granted at the instance of a private individual, who showed that he was interested in the navigation of the watercourse.
It must be noted that in either of these cases the police jury did not attempt to close the watercourses.
Prom these and other authorities, which w'e have consulted, we reach the conclusion that the navigability of a watercourse depends upon the fact whether the river, in its natural state, Is such as that it affords a channel for useful commerce, although its free navigation may be at times encompassed with difficulties by reason of natural barriers such as rapids and sandbars or accumulation of timber forming rafts.
The Supreme Court of the United States held that a small stream whose navigability was materially embarrased by rocks and rapids, and could only be navigated by means of Durham boats, and by means of locks and other artificial apparatus, was a navigable stream within the legal meaning of the term. The case of the Montello, 20 Wallace 430, and authorities therein cited.
The preponderance of the evidence in this record, although it is conflicting, affords satisfactory proof that Mack’s bayou is by its nature a navigable stream, and that it has been frequently and for many years navigated by small steamboats and flatboats in the transportation of cotton, merchandise and other commodities.
Under the plainest rules of evidence the negative testimony of defendant’s witnesses who say that the bayou is not navigable, and that in their recollection it has never been navigated for the puiposes of commerce, must yield before the positive testimony of witnesses of unimpeached veracity, who state, as captains and pilots of steamboats, that they have navigated the stream, giving the names, dimensions and capacities of the vessels used in the trade, and the years in which they thus used the watercourse for the purposes of commerce. They also give the dimensions of the stream at the j>oint where it flows out of Bed river, at which place it is 120 feet in width and it has 20 feet in depth during the highest water tide; and it is at that point that the ■proposed embankment is to be thrown.
Prom the record we find that the country surrounding the town of
Through Mack’s bayou as an outlet, Red river pours a large volume of water through the streams above-mentioned, thus feeding Lake Bistineau, and thus enhancing its navigation, which would he materially affected and much reduced in facilities by the closing of Mack’s bayou.
We thus perceive the great utility which was naturally expected from that bayou in that double system of navigation, and we hold that it does not lie within the power of a police jury to alter or defeat the object to he accomplished.
The navigability of the bayou is not affected by its present condition, which is the result of the accumulation of timber which has floated and stopped against numerous bridges which liad been built across the bayou, with or without legal authority, it is immaterial, and have formed rafts which at the present time seriously obstruct navigation thereon, and to some extent impede the free flow of waters through its hanks.
It is therefore ordered that the judgment of the lower court he annulled, avoided and reversed; that the verdict of the jury he set aside, and it is now ordered that plaintiffs do have and recover judgment perpetuating the injunction to prohibit the police jury of Bossier parish from closing Mack’s bayou in said parish by means of the embankment proposed to be thrown therein, at or near the point where it flows out of Red river, and for costs in both courts.
