122 Wash. 62 | Wash. | 1922
-The plaintiff by this action sought to restrain the defendant from interfering with a fence which he had constructed across one end of a lake. The defendant appeared by answer and cross-complaint and sought a judgment which would establish his right to navigate the lake free from the obstruction made by the fence erected by the plaintiff. The cause was tried to the court without a jury, and resulted in findings of fact and conclusions of law sustaining the rights claimed by the defendant_ in his cross-complaint. A judgment was entered dismissing the plaintiff’s action and perpetually enjoining him from interfering with the use of the waters of the lake by the defendant. From this judgment, the plaintiff appeals.
No statement of facts or hill of exceptions has been brought to this court. The result is that our inquiry
In Madson v. Spokane Valley Land etc. Co., 40 Wash. 414, 82 Pac. 718, 6 L. R. A. (N. S.) 257, it was held that Liberty lake, a body of water averaging about three-quarters of a mile in width, about one and three-quarters miles in length, and of an average depth of eighteen feet, was navigable. There can be no substantial distinction between the facts of that case and those of the present.
It is argued, however, that since the lake has at no time been used for any purpose other than that of pleasure craft and fishing, and in all probability will never be used in a commercial way, it should be held not to be navigable. The test, however, is not whether it has been used for commerce in the past, but whether it is capable of such use. If it has such capacity, it cannot be assumed that it will not sometime be used for that purpose, because only time will tell what its future use will be. The question is determined by capacity and not by use. 29 Cyc. 289; 27 R. C. L. 1308.
In State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S. W. 746, upon this question it is said:
“And so, if a body of water have sufficient capacity to be legally navigable, this determines its title, jus privatum, whether it is being actually used as a highway or not; and, having such capacity, it cannot be assumed it will never be used for navigation, because it cannot be known what time and the progress of the world may bring.”
It is not necessary here to determine whether the use of the lake by pleasure boats is such as would consti
The judgment will be affirmed.
Parker, O. J., Holcomb, Mackintosh, and Hovey, JJ., concur.