175 P. 437 | Or. | 1918
The case has two aspects, one being with reference to the navigability of the stream or lake in controversy, and the other as to the flowing-back of its waters to the injury of other properties along its banks. We have been somewhat hampered in our investigations by the indefiniteness of the questions and answers in matters such as boundaries, etc., involved, where precise answers were required. To illustrate the difficulty as well as to point :out a moral, we quote a few excerpts from the testimony:
“Q. In the summer-time, when you came down the creek, where did you land your boat?
A. We landed it all the way from where the Club House is here. (Indicating.)
Q. Here is the position of the Club House?
A. We land from that all the way down in here.”
There are pages of this sort of questions and answers, all of which may have been plain to the trial judge, who had the witness and the map before him, but the location of “here” and “there” is somewhat misty to one, who does not have that advantage. We call attention to this not because the attorneys in this case are negligent in this respect beyond hundreds of others, but to suggest that if “here” and “there” and “yonder” were always tied to some letter of the alphabet or designated by numerals, of which our system of notation furnishes unfailing and adequate combinations, the appellate court would be better able to properly understand and appraise the testimony.
It is obvious that the body of water here in litigation does not belong to the first class, as it is nontidal and has never been meandered but has been sectionized and disposed of as so much land. In some respects
The term “navigable waters,” as applied to non-tidal streams, has been often defined by the courts of this country, and while some of the definitions are apparently somewhat conflicting, yet when read with reference to the particular circumstances of each case-they substantially agree. We select the following instances from the many collated in 2 Words and Phrases. (2 ed.), 526. In Illinois the term has been defined as-follows:
“A stream, in order to be ‘navigable,’ must be of common or public use for the carriage of boats and lighters, and of bearing up and floating vessels for the transportation of property conducted by the agency .of man. It is navigable in fact only when it affords a channel for useful commerce, and is a practical utility to the public as such, and in its ordinary natural condition furnishes a highway over which commerce is or may be carried in the customary modes of conducting commerce by water. It is not sufficient that it is available in places for rowboats or small launches, or that hunters and fishermen pass over the water in boats used for that purpose: People v. Economy Light & Power Co., 241 Ill. 290 (89 N. E. 760, 771); Schulte v. Warren, 218 Ill. 108, 119 (75 N. E. 783, 785, 13 L. R. A. (N. S.) 745).
From Wisconsin we have the following definition:
“The term ‘navigable stream’ is not limited to a tide-water stream, but the question in each case is*21 whether it is in fact navigable; that is, used or susceptible of being used, in its ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Willow River, an indirect tributary of the Mississippi, capable of floating logs at certain seasons of the year and carrying rowboats, although not meandered, and so shallow that in places the boats have to be pushed, is a public ‘navigable stream’: Willow River Club v. Wade, 100 Wis. 86 (76 N. W. 273, 276, 42 L. R. A. 305).”
From North Carolina we have the following:
“If a stream is ‘navigable in fact, it is navigable in law’: Gould, Waters (3 ed.), 67. The capability of being used for purposes of trade and travel in the usual and ordinary mode is the test, and not the extent and manner of such use. * * Navigability cannot be affected by the conditions on the adjacent land, such as there being a large town on the shore, with numerous streets and wharves, or whether * * one riparian owner has a monopoly of the land, with no public road to the water, thus cutting off access to the land. It is the navigability of the water that is the test”: State v. Twiford, 136 N. C. 603 (48 S. E. 586, 587).
From Kansas, we have the following:
“Any water, to be ‘navigable,’ must be susceptible of use for purposes of commerce, or possess the capacity for valuable floatage in transportation to market of the products of the country through which it runs, and must be of practical usefulness to the public as a public highway in its own state and without the aid of artificial means; a theoretical or potential navigation or one that is temporary, precarious, and unprofitable not being sufficient: Dana v. Hurst (Hurst v. Dana), 86 Kan. 947 (122 Pac. 1041, 1042).”
Some of the federal authorities introduce another element into the definition of “navigable waters,” namely: that of public ingress and egress to the stream. Thus, in Harrison v. Fite, 148 Fed. 781 (78 C. C. A. 447), it is said:
“To meet the test of navigability as understood in the American law, a watercourse should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country through which it runs. It should be of practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability, or one that is temporary, precarious, and unprofitable, is not sufficient. "While the navigable quality of a watercourse need not be continuous, yet it should continue long enough to be useful and valuable in transportation; and the fluctuations should come regularly with the' seasons, so that the period of navigability may be depended upon. Mere depth of water, without profitable utility, will not render a watercourse navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes. To be navigable a watercourse must have a useful capacity as a public highway of transportation: Toledo Liberal Shooting Co. v. Erie Shooting Club, 90 Fed. 680 (33 C. C. A. 233); Moore v. Sanborne, 2 Mich. 520, 524 (59 Am. Dec. 209); Morgan v. King, 35 N. Y. 454,*23 458 (91 Am. Dec. 58); Brown v. Chadbourne, 31 Me. 9 (50 Am. Dec. 641); Griffith v. Holman, 23 Wash. 347 (63 Pac. 239, 83 Am. St. Rep. 821, 54 L. R. A. 178); Wethersfield v. Humphrey, 20 Conn. 218; Rowe v. Granite Bridge, 38 Mass. 344; Gaston v. Mace, 33 W. Va. 14 (10 S. E. 60, 25 Am. St. Rep. 848, 5 L. R. A. 392); Neaderhouser v. State, 28 Ind. 257; Rhodes v. Otis, 33 Ala. 578 (73 Am. Dec. 439); Railroad v. Brooks, 39 Ark. 403 (43 Am. Rep. 277).”
This view of the law seems to have the approval of the Court of Errors and Appeals of the State of New Jersey in King v. Muller, 73 N. J. Eq. 32 (67 Atl. 380), wherein the court quoted with approval from 1 Farnham on Waters, page 100, the following excerpt:
“A navigable body of water is one which the public has a right to use for the purposes of navigation. The term includes all waters which for a period long enough to be of commercial value are of sufficient capacity to float water craft for the purposes of commerce, or to float to market the products of the country through which the water extends, so as to be useful to the population along its banks. * * The stream must be of some value to trade, commerce or agriculture. And this excludes waters which are merely capable of floating a skiff for pleasure. And to be useful for these purposes the water must connect with other waters or lead from one public place to another, so as to be in the path of commerce. So, a stream is not navigable so as to be a public highway which leads from a public river to a private house, or to which the public have no access except at one point, where a highway approaches it. In order to be public it must have a terminus by which the public can enter it, and another from which it can leave it. But a stream to be public need not lead from one county to another. The rights of the public are entirely dependent on the capacity of the stream for navigation.”
The authorities above cited seem in substantial accord as to the proposition that for a stream to be con
The case of Harrison v. Fite, 148 Fed. 781 (78 C. C. A. 447), the language of which we have quoted, would seem to support defendant’s contention, but when considered with reference to the facts it does not go to the extent claimed by the defendant here, as the court found that the alleged lake, the navigability of which was one branch of the controversy, was in fact an unnavigable swamp, and that Little Eiver, whose navigability was the remaining subject of contention, was not navigable for the reasons which we quote:
“Witnesses testified that in times of high water there has been no successful navigation of it in recent years, except with gasoline launch drawing but a few inches of water, and with canoes, skiffs, and dugouts of the hunters and fishermen; that it is not being used to float the products of the fields and forests to market, and cannot be profitably and successfully used for that purpose. And, if practical adaptability and usefulness are the tests, the finding of the court under the evidence was right. ’ ’
“The character of a river, as such highway, is not so much determined by the frequency of its use for that purpose as it is ¿by its capacity of being used by the public for purposes of transportation and commerce.”
To the same effect is Sullivan v. Spotswood, 82 Ala. 163 (2 South. 716).
The whole question here considered came before the Supreme Court of Minnesota in Lamprey v. State, 52 Minn. 181 (53 N. W. 1139, 38 Am. St. Rep. 541, 18 L. R. A. 670). That case seems so exactly to coincide with the case at bar and the general conditions are so similar to those existing in this state, that we quote from it the following:
“In this country, while still retaining the common-law classification of navigable and non-navigable, we have, in view of our changed conditions, rejected its test of navigability, and adopted in its place that of navigability in fact; and, while still adhering to navigability as the criterion whether waters are public or private, yet we have extended the meaning of that term so as to declare all waters public highways which afford a channel for any useful commerce, including small streams, merely floatable for logs at certain seasons of the year. Most of the definitions of ‘navigability’ in the decided cases, while perhaps conceding that the size of the boats or vessels is not important, and, indeed, that it is not necessary that navigation should be by boats at all, yet seem to convey the idea that the water must be capable of some commerce of pecuniary value, as .distinguished from boating „ for mere pleasure. But if, under present conditions of society, bodies of water are used for public uses other than mere commercial navigation, in its ordinary sense, we fail to see why they ought not to be held*29 to be public waters, or navigable waters, if the old nomenclature is preferred. Certainly, we do not see why boating or sailing for pleasure should not be considered navigation, as well as boating for mere pecuniary profit. Many, if not the most, of the meandered lakes of this state, are not adapted to, and probably will_ never be used to any great extent for commercial navigation; but they are used — and as population increases, and towns and cities are built up in their vicinity, will be still more used — by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city purposes, cutting ice, and other public purposes which cannot now be enumerated or even anticipated. To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated. When the colony of Massachusetts 250 years ago, reserved to public use her ‘great ponds,’ probably only fishing and fowling were in mind, but, as is said in one case, ‘with the growth of the community, and its progress in the arts, these public reservations, at first set apart with reference to certain special uses only, became capable of many others, which are within the design and intent of the original appropriation. The devotion to public use is sufficiently broad to include them all, as they arise’; West Roxbury v. Stoddard, 7 Allen, 158. If the term ‘navigable’ is not capable of a sufficiently extended meaning to preserve and protect the rights of .the people to all beneficial public uses of these inland lakes, to which they are capable of being put, we are not prepared to say that it would not be justifiable, within the principles of the common law, to discard the old nomenclature, and adopt the classification of public waters and private waters. But, however that may be, we are satisfied that, so long as these lakes are capable of use for boating, even for pleasure, they are navigable, within the reason and spirit of the common-law rule.”
The whole case is before us upon tlm pleadings and testimony, and in the interest of all parties it should be fully settled here. Each party is claiming more than it is entitled to, therefore, the decree below will be modified by enjoining defendant from obstructing the stream by dam, or otherwise, at any point at or above the dam shown in the testimony, and from rebuilding the same at any place in the stream, until it