86 Ala. 88 | Ala. | 1888
The 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 Sipsey river, at a point where that stream constitutes the line between the counties of Pickens and Greene, by floating logs over it. One of the prominent questions raised in the court below, and presented here by the bill of excep
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 point 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 classes; one having reference to streams alleged to be navigable throughout the year; the other, to streams navigable only for a part of each year, or for certain seasons. As to the former, it is sufficient to show adaptability for the purposes of navigation or valuable 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 the 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 was 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 may 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 the court to give these . charges was proper. — -
But, while tbe evidence set out in the bill of exceptions was not sufficient to authorize tbe court to declare tbe character of tbe stream as a matter of law, it should have been submitted to tbe jury for their consideration 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 the 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.