91 P. 448 | Or. | 1907
The questions for determination on this appeal are: (1) Whether the Klaskanie, where it flows through the lands of plaintiff, is a navigable or floatable stream; (2) to what extent, if any, the defendants may render it navigable or assist the navigability thereof by means of a splash dam. .
1. The common law of England, that the only streams which are navigable are those in which the tide ebbs and flows, has never been adopted in -this country. Rules which reason and convenience may have approved in reference to the streams of that country are wholly inapplicable to our waterways, natural resources and conditions, and it is now considered here that any stream which can be used in its natural state for commercial purposes is navigable. The existence of immense bodies of timber in Maine, Michigan and other states, which could be transported to market only by use of adjacent streams, influenced the courts to early hold that any stream which is capable in its natural condition of being commonly and generally used for floating saw logs at periods of high water is navigable or float-able for the transportation of the timber along its banks. This doctrine has been accepted and declared by this court, and the courts of this country generally, until now it may be regarded as settled that streams, which in their natural condition are useful for the transportation of saw logs during the whole or part of each year, are highways for that purpose: Brown v. Chadbourne, 31 Me. 9 (1 Am. Rep. 641); Moore v. Sanborne, 2 Mich. 520 (59 Am. Dec. 209); Weise v. Smith, 3 Or. 445 (8 Am. Rep. 621); Shaw v. Oswego Iron Co. 10 Or. 371 (45 Am. Rep. 146); Haines v. Welch, 14 Or. 319 (12 Pac. 502); Haines v. Hall, 17 Or. 165 (20 Pac. 831: 3 L. R. A. 609); Nutter v. Gallagher, 19 Or. 375 (24 Pac. 250); Hallock v. Suitor, 37 Or. 9 (60 Pac. 384); 27 Cyc. 1566; 21 Am. & Eng. Enc. Law (2 ed.), 428. But streams which are not of sufficient size and capacity to be profitably so used are wholly and absolutely private: Munson v. Hungerford, 6 Barb. 265; Wadsworth v. Smith, 11 Me. 278 (26 Am. Dec. 525). “The true test, therefore, to be applied in such cases,” ■ says the Supreme. Court of
“The true rule is,” says the Supreme Court of New York, in Morgan v. King, 35 N. Y. 460 (91 Am. Dec. 67), “that 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 to the right that the property to be transported should be carried in vessels, or in some other mode whereby it' can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance. Nor is it necessary that the stream should be capable of being thus navigated against its current, as well as in the direction of its current. If it is so far navigable or floatable, in its natural state and its ordinary ca
2. But a stream which is not such a highway cannot be made one by the use of dams or other artificial means, without first acquiring the rights of riparian proprietors: 1 Farnham, Waters, § 139. Nor can a stream, navigable in its natural condition at certain stages of the water, be made so at other times by artificial means, such as flooding and the like. No one has a right to store water, and then suddenly release the accumulation, and' thus increase the natural volume of the stream, and overflow, injure or wash the adjoining banks,'or otherwise interfere with the rights of riparian owners. The riparian proprietor is entitled to the enjoyment of the natural flow of the stream with no burden or hindrance imposed by artificial means: Brewster v. Rogers Co. 169 N. Y. 73 (62 N. E. 164: 58 L. R. A. 495); Thunder Bay Booming Co. v. Speechly, 31 Mich. 336 (18 Am. Rep. 184); Witheral v. Muskegon Booming Co. 68 Mich. 48 (35 N. W. 758: 13 Am. St. Rep. 325); Koopman v. Blodgett, 70 Mich. 610 (38 N. W. 649: 14 Am. St. Rep. 527); Matthews v. Belfast Mfg. Co. 35 Wash. 662 (77 Pac. 1046); Monroe Mill Co. v. Menzel, 35 Wash. 487 (77 Pac. 813: 70 L. R. A. 272: 102 Am. St. Rep. 905); Ford Lum. & Mfg. Co. v. Clark (Ky.),
Dams, dikes, embankments and the like may be constructed in or along- floatable streams to facilitate their use (Union Power Co. v. Lichty, 42 Or. 563: 71 Pac. 1044), but not to the extent of injuring the riparian proprietors by retarding the flow of the water or sending it down in increased volumes to his injury or at times when the stream would not otherwise be navigable. And this rule is not changed by the fact that a stream cannot be successfully used for logging purposes without such artificial aids to navigation on the ground of necessity. In Thunder Bay Booming Co. v. Speechly, 31 Mich. 336 (18 Am. Rep. 184), and Koopman v. Blodgett, 70 Mich. 610 (14 Am. St. Rep. 527: 38 N. W. 649), the Supreme Court of Michigan had occasion to consider the right to make a stream which is navigable only at certain seasons of the year navigable at other times by impounding the water until a flow - sufficient to float logs could be caused. In the former case, Mr. Justice Cooley, after reviewing the Maine and Michigan eases, quoting with approval what is said to be the true rule by the New York Court of Appeals, noting the fact that all the cases carefully restrict within the bounds of capability for use in their ordinary and natural condition the public easement in streams navigable only at certain seasons of the year, and holding that> a stream is navigable during the period the water in its natural condition is sufficient to permit of a public use, says: “During that time the public right of floatage and the private right of the riparian proprietors must each be exercised with due consideration for the other, and any injury which the latter receives in consequence of a proper use of the stream for floatage he must submit to as incident to his situation upon navigable waters: Middleton v. Flat River Boom Co. 27 Mich. 533. -But at periods when there is no highway at all there is no ground for asserting a right to create a highway by means which appropriate or destroy private rights. The doctrine that this may be done without compensation to parties injured is at war with all our ideas of property and of
3. Having thus ascertained that a stream, to be navigable or floatable for saw logs, must be capable in its natural condition at ordinary recurring freshets of being successfully and profitably used for that purpose, and that a stream not navigable or floatable in its natural condition cannot be made so by artificial means, nor can the capacity of a navigable stream be increased by such means to the injury of a riparian proprietor without compensation, we are now prepared to consider the facts of the particular ease before us and determine the respective rights of the parties litigant. The plaintiff is the owner of 480 acres of land, most of which is bottom or meadow land and has been extensively improved and used as such. Through this land, from the north and east, flows the North Fork of the Klaskanie, for a distance of about one-half mile, to a point a short distance west of plaintiff’s land, where it joins another stream from the southeast, called the “South Fork” of the Klaskanie, and the two streams united flow- to the west, forming the Klaskanie Eiver. The tide ebbs and flows in the Klaskanie from its mouth
Many witnesses were called and testified in behalf of both parties as to the character and capacity of the stream. They differ as to whether logs can be floated down it without the aid of dams. The witnesses for plaintiff, most of whom are farmers or landowners along the stream or in the vicinity, all concur in opinion that it cannot be so used; while the witnesses for defendants, most of whom are loggers or mill men, are equally positive that it can. But, while the witnesses differ in their opinions, there is no substantial conflict in the facts as testified to by them. They all agree that the stream is not floatable except in times of winter freshets, and that such freshets do not ordinarily occur more than three or four times a year, and continue but a few hours at a time. Christian .Peterson, who was plaintiff’s foreman, and lived upon his farm for 24 years prior to 1902, testified that during the ordinary winter freshets the water was from one and one-half to two feet deep in the riffles
James Leahy, who had lived on the stream above plaintiff’s place for' more than 20 years, testified that during the winter of 1903 and 1904 there was but one freshet sufficient to float logs, and then only small ones, and that it did not continue for more than three hours; that some years there would be three or four freshets, depending upon the rainfall, but they would only continue two or three hours; that the running of logs by defendants during the winter of 1903 and 1904 caused more damage than the natural wash of the stream for the previous 20 years. Michael Leahy and Charles Gilliam, who live on th© stream, say that the water is from two and one-half to three feet deep during the ordinary winter freshets, and not sufficient to float any but small saw logs. Gilliam testified that some 12 or 15 years ago he put 137 logs in the stream and got one out the first
Most of the witnesses for defendants do not live on the stream and have no actual knowledge of its conditions, but testified as to their opinion from an examination of the stream and their general knowledge of the climatic conditions of the surrounding country and its waterways. They generally agree that not, more than from two to five freshets, sufficient to float logs, may reasonably be expected in the streams of that vicinity each year,
4. We have made this extended reference to the testimony because whether a given stream is, in law, navigable or floatable, depends upon the facts, and a decision in one case cannot, be regarded as a precedent in another, unless the facts are the same. From the testimony of the witnesses, both for plaintiff and defendants, it is apparent, we think, that the Elaskanie, where- it flows through plaintiff’s land, is not, in its natural condition, floatable for logs, because it is not capable of serving any important public use. Logs cannot be floated therein except,
5. It is suggested that in view of the great lumber interests in the state, the public good would be subserved by holding that streams like the North Fork of the Klaskanie are public highways for the floating of saw logs; but this argument can have no bearing whatever upon the question. The magnitude or importance of any business or industry will not justify the slightest encroachment upon the rights of the citizen, and, unless a stream is in fact navigable or floatable, it cannot be taken or used without the consent of the owner, except by due process of law, however beneficial it might be to private interest or the public itself. It is often the case that the public good would be subserved by taking one man’s property for the benefit of the community; but as already quoted from Judge Cooley, “it neither should be nor can be done under any circumstances without observing the only condition on which it can be permitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public.”
The decree will be reversed, and one entered here for plaintiff. Reversed.