106 Va. 176 | Va. | 1906
delivered the opinion of the Court.
H. A. Revercomb brought an action of trespass on the case against the Hot Springs Lumber and Manufacturing Company and the Jackson and Cowpasture Boom Company, and in his declaration avers that he is' the owner of lands to the water’s edge on both sides of Jackson river, and that he also owns the bed of that stream; that the defendants went above the plaintiff’s land on said river and cut and wrongfully put into the river a great many saw-logs, for the purpose of floating them down said river to the sawmill of the Hot Springs Lumber and Manufacturing Company, which is situated below the plaintiff’s land. He avers “that the said Jackson river is not a floatable stream, and was not at the time said logs were put therein, and is not a stream large enough in volume of water, in its natural condition, to float the logs of the defendants, placed therein as aforesaid, but was only capable of floating said logs when the river was swollen or made high by rains or melting snow, at irregular periods, all of which facts were well known to the de
Another count of the declaration avers, in addition to the cause of action just set forth, “that it was the duty of the defendants to prepare the banks of said river so as to protect the plaintiff’s land from damage by said logs .being piled and washed on plaintiff’s land in the attempt to have the same floated or washed down said stream, as aforesaid; and plaintiff avers that it was necessary that said banks of said river should be prepared by said defendants in order to guard the plaintiff’s lands against damage by floating said logs. But not regarding their duty in this particular, the said defendants failed and neglected to prepare the banks of said river so as to protect the plaintiff’s land from damage from said logs; that the river being swollen by.rains or melting snow, the defendants carelessly and negligently permitted the said logs to be washed or floated down said river on to the lands of the plaintiff, and
These quotations sufficiently present the aspects of the case which we deem it necessary to consider upon the demurrer which was interposed to the declaration by the defendants and overruled by the Circuit Court.
The question presented is an interesting one, and in order to determine it we must ascertain, in the first place, what constitutes in common law a floatable stream, the subject with us not having Been regulated by statute.
The contention of plaintiff in error is that for a stream to be floatable, and therefore subject to use as a highway, it is not necessary that it should possess the quality of being capable of such use during the whole year, but it is sufficient if it has water enough, as the result of natural causes, to be capable of floatage periodically during the year, so as to be susceptible of beneficial use to the public.
In Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641, the following instruction was refused: “To constitute Little River a navigable or floatable stream it must be shown to be capable in its ordinary and natural state of floating logs, boats and rafts;
In Thunder Bay Booming Co. v. Speechley, 31 Mich. 336, 18 Am. Rep. 184, 190, Judge Cooley, after stating that the possibility of occasional use during unusual and brief freshets could not make a stream a public highway, adds: “The doctrine, then, which we derive from the cases is that a stream may be a public highway for floatage when it is capable, in its ordinary and natural stage in the seasons of high water, of valuable public use. The inference sought to be drawn from it is that a navigable stream must, in contemplation of law, be navigable at all times, and under all circumstances; that there can be no such thing as a highway which is only open to the public use periodically, but that when once the public character of the way is established the right of the public to. the easement is paramount to all private rights. . . . But no
In Shaw v. Oswego Iron Co., 10 Or. 371, 15 Am. Rep. 146, 154, it is said: “Hor is it essential to the public easement that such capacity continue through the year; it is sufficient if its periods of high water, or navigable capacity, ordinarily continue a sufficient length of time to make it useful as a highway.”
In Gaston v. Mace, 33 W. Va. 14, 10 S. E. 65, 25 Am. St. Rep. 848, 5 L. R. A. 392, it is stated: “It is contended that to show a river is public it is not enough to prove that logs may be floated down at a certain season of the year, when it is affected by a freshet, but it should have that capacity in its natural and ordinary state at all seasons of the year. Hone of the authorities require the stream, to possess the .quality of being capable of such use during the whole year. A distinguishing criterion consists in its fitness to answer the wants of those whose business requires its use. Its perfect adaptation to such use may not exist at all times, although the right to it may continue, and be exercised whenever an opportunity occurs.”
In Little Rock, &c., R. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277, 279, it is said: “Hor is it necessary that the stream should be capable of floating boats or rafts the whole or even the greater part of the year. Upon the other hand, it is not sufficient to impress navigable character that there may be extraordinary times of transient freshets when boats might be floated out. Eor if this were so, almost all insignificant streams
In Carter v. Thurston, 58 N. H. 104, 42 Am. Rep. 584, it is said: “Olear stream is naturally capable of floating logs at some times every year, and to a considerable extent, and that it is reasonably and substantially useful to tbe public for that kind of navigation. It is, therefore, a public highway.”
In Farnham on Waters and Water Bights, Vol. I, section 25, it is said: “Streams which are capable of floating to market the products of the soil along their banks are navigable within the rule subjecting navigable streams to public use. The public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting in a condition fit for market the products of the forests or mines, or of the tillage of the soil upon its banks. It is not essential that the property to be transported shall be carried in vessels or be guided by the band of man, if it can be safely carried without such guidance. Nor is it necessary that the stream shall be capable of navigation against its current, nor that it shall be navigable at all seasons of the year, it. being sufficient that it becomes navigable periodically from natural
The Circuit Court seems, when it came to the instructions, to have recognized the force of these authorities, for it instructed the jury as follows: “The jury are instructed that a
Wben tbe authorities speak of tbe stream in its natural state they do not refer, we apprehend, to its volume of water, for however that may vary it is always due to natural causes; but they have reference to artificial aids or improvements. Tbe declaration avers that tbe river has not sufficient water in it wben in its natural or normal condition, by which we understand is meant in tbe more usual and continuous stages of tbe water, but that, in order to float tbe logs it is necessary for tbe volume of water to be increased by melted snows or rains. Tbe condition of tbe stream wben its volume of water is increased by sucb causes is as natural as when it is diminished by drought, and, as we understand tbe law, it is a floatable stream if by the increased precipitation at seasons, recurring periodically with reasonable certainty, tbe flow of water will be sufficient to be substantially useful to tbe public for tbe transportation of tbe products of their fields and forests.
Tbe right of floatage is one of the innumerable limitations or qualifications by which, in a state of civilized society, we are compelled to yield something of our absolute rights with respect both to person and property, and to enjoy those rights in some degree in subordination to tbe rights of others. Tbe owner of timber, for instance, upon tbe upper reaches of a stream, would find bis property diminished in value were be not permitted to use tbe waterway which nature has provided. Riparian owners, therefore, upon tbe lower parts of tbe stream, must submit to this use as an incident of their ownership of lands situated upon a navigable stream.
The point of demurrer is that while the plaintiff denies that Jackson river is a floatable stream, his declaration sets out facts which in law make it a floatable stream; and that position is, we think, warranted by the language of the declaration, which avers that while in its “natural and normal condition”— that is to say, in its usual condition—Jackson river has not ■sufficient water to float logs, yet that when the volume of water is increased by melting snows and rains at irregular periods the volume of water is sufficient to float logs, which concedes to .Jackson river conditions which the authorities declare to be sufficient to constitute a floatable stream. The declaration •seems to have been framed upon the idea that to constitute a floatable stream it must be capable, in its ordinary and usual ■state, of floating logs, and that it was not enough that logs could be carried down it at certain seasons of the year when the volume of water was increased by melted snows or rains.
Having set forth, as the pleader supposes, that Jackson fiver is not a navigable stream, it follows, of course, that the defendants had no right in it, that they were trespassers and liable for whatever injury their trespass might have occasioned. But it was contended on the part of the defendants, in support of the demurrer, that the declaration, whatever the intent may have been, shows that Jackson river was a floatable stream, in which the defendants had a right to place their logs in order to carry them to the mill, and being in the exercise of a right they could only be responsible for carelessness or negligence in the exercise of that right; and that the declaration wholly fails to show any fact from which carelessness or negligence can be inferred.
In Hortenstein v. Va.-Carolina Ry. Co., 102 Va. 911, 17 S. E. 996, it is said: “The object of the declaration is to apprise the adverse party of the ground of complaint, and in actions of tort the declaration must state sufficient facts to en-
As was said by Judge Staples in B. & O. R. R. Co. v. Whittington's Admr., 30 Gratt. 805 : “It is very true that in actions for torts it is frequently sufficient to describe the injury generally, without setting out the particulars of the defendants* misconduct. In such cases great latitude of statement is allowed. But this rule does not justify a general and indefinite mode of declaring, admitting of almost any proof.”
The averment is that the defendants “carelessly and negligently permitted said logs to pile up on the banks of said river on the lands of your complainant in great heaps or jams, which turned the water in said river from the channel where it had been accustomed to flow, and caused the water in skid river to-flow out on and against the plaintiff’s land.” The declaration is wholly silent as to the act of negligence. It merely states that the logs were piled up on the banks of the stream on the’ plaintiff’s land, which may have been the result of negligence, but is silent as to the facts which constitute the negligence. If the defendants had the right to the use of Jackson river they would not be liable for injury, although logs did pile up on plaintiff’s land and injure him, provided due-and ordinary care was used in floating the logs upon the stream to prevent injury to the adjacent landowners.
In Southern Railway Co. v. Hansbrough's Admx., 105 Va. 527, 54 S. E. 17, it is held that a count in a declaration was bad which alleged “that the engine was run at a high rate of speed carelessly, negligently and unskillfully, without pointing’ out in what manner it was so run, and without alleging a violation of any ordinance, or averring any obstruction to the view of persons crossing, which made it necessary for the company not to run its engines at a high rate of speed, states no cause of
As was said by Judge Cooley in Thunder Bay, &c., Co. v. Speechley, supra: “When once the public character of a way is established, the right of the public to the easement is paramount to all private rights. . . . The public right of floatage and the private right of the riparian proprietor must each be exercised with due consideration for the other, and any injury which the latter receives in consequence of the proper use of the stream for floatage he must consider it as incident to his situation upon navigable waters.”
And in Carter v. Thurston, supra, it is said: “If the logs were cast upon the shore, not by reason of an improper use of the stream, but by accident and without any fault of the defendants, they are not responsible at common law for the damage thus occasioned. Such streams, as well as our larger rivers, will, as experience has universally shown, from their windings and the rush of their waters, especially in times of freshets, cast floating logs upon the shores and bank.”
We are further of opinion that the fourth count charges the defendants with a higher duty than is imposed upon them by law.
In Field v. Apple River Log Driving Co. (Wis.), 31 N. W. 17, the defendants, it was claimed, might have protected the land by building some structure along the shore, or by having men there to keep logs from striking it, and the court said:
*188 “Now as we understand the law, the right of navigation is not subject to any such duty. The right of passage on a navigable stream is a common and paramount one, but must, of course, be exercised with due regard to the rights of riparian owners. The use of the stream must be reasonable, and it must be exercised with ordinary care and skill, such as the great mass of mankind would exercise, under like circumstances, in driving logs. If the wind-jam on the bar below the dam caused the injury complained of, it might have been the duty of the defendant to prevent such jams from forming, if it was practicable to do so by any reasonable means; but it is not its duty to build booms or other structures along the plaintiff’s shore to protect it from wearing or washing away.”
And in Coyne v. Miss. & Run River, &c., Co., 71 Minn. 533, 75 N. W. 748, 71 Am. St. Rep. 508, 41 L. R. A. 498, the rule is stated thus: “The party using the highway is not an insurer, but he must not be negligent or careless. Moating logs may cause damage to the estate of the riparian owner, but, if the party floating or driving the same uses due care and skill he is not liable for such damage. Land on navigable streams is subject to the danger incident to the right of navigation, and where logs are driven in a stream in any ordinary, careful, prudent manner, the owner is not liable for damages which may result to the riparian owner.”
We are of opinion, for the foregoing reasons, that the demurrer should have been sustained, with leave to the plaintiff to file an amended declaration.
We do not deem it proper to discuss the instructions. What we have already said will indicate in large measure the views of the court upon the propositions of law involved, and in the present aspect of the case it would be premature for us to discuss the instructions or the evidence, as upon another trial a wholly different record may be presented.
The judgment complained of is reversed, and the cause remanded for further proceedings to be had, not inconsistent with the views herein expressed.
Reversed.