Olive v. State, 86 Ala. 88

STONE, C. J.

Thе appellants were convicted under section 4418 of the Code of 1876 (now a part of section 3886, Code of 1886), for willfully injuring a mill-dam on the Siрsey river, at a point where that stream constitutes the line between the counties of Pickens and Greene, by floating logs over it. One оf the prominent questions raised in the court below, and presented here by the bill of exceptions, involves the character of thе Sipsey river, at the place of the alleged offense, as to navigability. The court judicially knows, that the whole of said river is abovе the ebb and flow of tides. It is therefore prima facie nnnavigable, and the onus of impressing it with the character of a public highway was upon the defendants in the Circuit Court. In attemрting to do so, they introduced, without objection, three acts of the General Assembly — closing with other evidence ‍‌‌‌‌‌‌‌​‌‌​​​​​​​​‌​‌​‌​‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​​‍to be presently cоnsidered' — which have reference to the navigation of this stream. The first of these, passed in 1837, declares Sipsey river a public highway, from its mouth to a point in the county of Marion, far above the locus of the alleged offense, but it makes no provision for compensatiоn to riparian owners, who might be damaged by the use of the stream for the purposes of navigation. This statute was probably repeаled by another ■ of the acts mentioned; but, whether that be true or not, it could not have the effect of making the water-course a public highway, unless in point of fact it was a navigable stream. — Angelí on Water-Courses, sec. 541; Morgan v. King, 35 N. Y. 454. The other acts of 1839 and 1875, respectively, were substantially the same, each being for the incorporation of a company to “open and improve the navigation” of the Sipsey river; each giving the company exclusive control of the navigation of the river, after it had opened and improved the river for that purpose, and each providing ad quod damnum proceedings for the subjection of the property of riparian owners to the uses of the company. The latter of these ‍‌‌‌‌‌‌‌​‌‌​​​​​​​​‌​‌​‌​‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​​‍acts contains a repealing clause, as to all conflicting statutes, which includes probably the act of 1837, supra. Under the act of 1839, nothing appears to have been done. Under that of 1875, the corporation was organized, and entered upon the business for which it was created; but, at the time of the injury charged, the navigation of the fiver had not been “opened and improved” up to the point where the mill-dam was" situated, if at all, and hence the character of the stream had nоt been changed so far as that part.of it was concerned; and although these defendants were the officers and employees of said corporation, and committed the act charged in the prosecution of the corporation’s business, they cаn claim no immunity from punishment on that ground, because the terms of the act, upon compliance with which their right to navigate the river under it depended, had not been complied with. — Acts 1875-6, p. 318. The rulings of the court below, as to the effect of these several statutes, and the dеfendants’ rights under them, are therefore free from error.

These considerations leave the character of the stream with reference to navigability to be determined by the jury under the charge of the ■ court. The tests to be used in reaching a conclusion on this pоint are those which apply to all streams in the State which are above ‍‌‌‌‌‌‌‌​‌‌​​​​​​​​‌​‌​‌​‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​​‍the ebb and flow of the tides. These tests are of two clаsses; one having reference to streams alleged to be navigable throughout the year; the other, to streams navigable only for а part of each year, or for certain seasons. As to the former, it is sufficient to show adaptability for the purposes of navigation or valuаble floatage of the products of the country, at the usual stage of water, without reference to the past, present or prospective uses of the stream for these purposes.— Walker v. Allen, 72 Ala. 456. The Sipsey river appears from the evidence in this case to belong to that other class of water courses, “which are suitable for the purposes of transportation only during certain periods, of varying duration, recurring from year to year, and for limited purposes.” As to a stream of this character, the inquiry relates to its fitness, and thе period of its capacity for valuable floatage; the number of individuals interested, and the extent of the public interest involved in its use for transportation; the length of time previously used by the public, and its prospective public use; and whether the bed of the stream wаs embraced in the government surveys of the territory through which it runs, or was excluded therefrom by meanderings. Whether it be necessary, in all cases, to fill the measure of all these tests by satisfactory evidence, we do not decide. We judicially know that the bed of this river was included in the surveys of the country; and this fact gives additional strength to the presumption of non-navigability resulting from disconnection with tide-waters. Whatever mаy be the smallest measure of proof required to impress a stream of the class under consideration with a public character, we hold that the evidence adduced in this case, to the effect that the “river was sufficient for the floatage of logs and fiatboats during the winter seasons”, and that the particular logs with which the injury complained of was caused, had been floated from Fayette county, was not sufficient to authorize the charges requested by the defendants, declaring the stream to be per se a public highway; and the refusal of thе court ‍‌‌‌‌‌‌‌​‌‌​​​​​​​​‌​‌​‌​‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​​‍to give these . charges was proper. — - Rhodes v. Otis, 33 Ala. 578; Walker v. Allen, 72 Ala. 457; Lewis v. Coffee County, 77 Ala. 193; Sullivan v. Spotswood, 82 Ala. 165.

But, while tbe evidence set out in the bill of exceptions was not sufficient to authorizе tbe court to declare tbe character of tbe stream as a matter of law, it should have been submitted to tbe jury for their considеration in determining tbe character of tbe river, as a matter of fact. — Peters v. N. O., M. & C. R. R. Co., 56 Ala. 528. And if they bad found that the river was a public highway, tbe public use of which was obstructed by tbe dam in question, they would have been authorized to acquit tbe .defendants. — Owens v. State, 52 Ala. 400. And this without regard to tbe length of time tbe dam bad been in tbe river, since there can be no ‍‌‌‌‌‌‌‌​‌‌​​​​​​​​‌​‌​‌​‌‌‌‌​​​‌​‌​​‌​​​‌‌‌​​‌​​‍prescriptive right to maintain or continue an obstruction to the navigation of a public stream.

That part of thе general charge of tbe court which is to tbe effect, that tbe existence of tbe dam for many years established the fact that it was rightfully in the river, &c., was therefore erroneous. Tbe second charge given at tbe request of tbe solicitor also withdrew from tbe jury’s consideration tbe evidence which tended to show that the river was navigable, and tbe obstruction therefore unlawful, and should have been refused. There are no other'errors in tbe record.

Beversed and remanded.

Case Details

Case Name: Olive v. State

Court Name: Supreme Court of Alabama

Date Published: Dec 15, 1888

Citation: 86 Ala. 88

Court Abbreviation: Ala.