33 Ala. 578 | Ala. | 1859
The word navigable has, in the English common law, a technical meaning, and is used to describe public rivers where the tide ebbs and flows. Angell on Water Courses, 604, § 542; 3 Kent’s Com. 512; Stuart v. Clarke, 2 Swan, 9; Scott v. Wallace, 3 N. H. 321; Morgan & Harrison v. Reading, 3 S. & M. 366; Comm’rs v. Withers, 29 Miss. 21; Ex parte Jennings, 6 Cow. 518.
The charges given and refused in this case manifestly use the word navigable in its common, and not in its technical acceptation; and in that sense we will understand it, for the purposes of this opinion.
It is undoubtedly true, as held by this court in Ellis v. Carey, 30 Ala. 725, that all streams below tide-water are, prima facie, public; and all above tide-water are, prima facie, private, not subject to a public right of floatage upon them.—King v. Montague. 4 B. & C. 598 ; Angell on Water Courses, 596, § 535; Mayor of Colchester 7 Ad. & E. 33, (53 E. C. L. 339;) Miles v. Rose, 5 Taunt. 705, (1 E. C. L. 240;) Wadsworth v. Smith, 11 Maine, 278; Morgan v. King, 18 Barb. 277.
Bashi creek, being above tide-water, is, prima facie, not a navigable stream. The onus of proof was, there
The test laid down in the People v. Platt, 17 John. R. 211, of a fresh-water stream, in which the public have an easement for purposes of transportation and commercial intercourse, is their susceptibility of use as a common passage for the public. The navigability of the Hudson at Stillwater is placed upon the ground, that it was, beneficially to the public, subservient of rafting.—Palmer v. Mulligan, 3 Caines, 318. Lord Hale describes navigable streams as of sufficient depth for valuable floatage.—Angelí on Water Courses, 596, § 535. In Wadsworth v. Smith, 11 Maine, (2 Fair.) 278, it is said, those streams, which are sufficiently large to bear boats or barges, or to be of public use in the transportation of property, are highways by water, over which the public have a common right.
The South Carolina court, while declining to define a navigable stream, said, that that would not be a navigable stream, the natural obstructions of which prevented the passage of any boats whatever.—Cates v. Wadlington, 1 McCord, 583; see Wilson v. Forbes, 2 Dev. Law, 30; Ingram v. Threadgill, 3 Dev. Law, 61. In Tennessee it is held, .that the public have an easement in shallow streams, which are of sufficient depth for valuable floatage, as for rafts, flat-boats, and, perhaps, small vessels of lighter draft than ordinary.—Stuart v. Clark, 2 Swan, 16; Elder v. Burrus, 6 Humph. 364.
The language of the decision in Munson v. Hungerford, 6 Barb. 370, is: “A stream, to be navigable within the authorities, must furnish a common passage for the King’s people; must be of common or public use for carriage of boats or lighters; must be capable of bearing up and floating vessels for the transportation of property, con
It is intimated, though not decided, in Brown v. Scofield, 8 Barbour, 239, that the courts will take judicial notice of such streams as are public highways; and in determining whether the Carristo river is navigable, stress is laid upon the fact, that it had been used as a highway, since the settlement of the country; and the remark is made, “that these great natural channels and avenues of commerce, whenever they are found of sufficient depth to float the products of the mines, the forests, or the tillage of the country, through which they flow to market, have always been adjudged by our courts to be subject to the right of passage, independent of legislation.”
The question in Curtis v. Keesler, 14 Barbour, 511, was whether Calikoon creek was a navigable stream. The proof was, that the tide did not ebb and flow in the stream; that, in its natural state, it was not capable of floating a log; that when swollen by freshets, or the melting of snow, it*would bear up a raft, or single logs of timber; that it had been occasionally used, for many years, by a few persons. Declaring that a stream, to be navigable, must be a common passage for the King’s people; must be of public use for carriage of boats and lighters; must be capable of bearing up and floating vessels for the transportation of property, conducted by the agency of man, the court held, that the stream was not navigable.
In Morgan v. King, 18 Barbour, 277, it was decided, that a stream might be public, although useful only to float single logs without manual guidance; and that a stream, upon which and its tributaries saw-logs, to an unlimited amount, would be floated eveiy spring, and for a period of from four to eight weeks, and for the distance
Morgan v. King, supra, presented a peculiar case, where the immense forests of valuable timber, contiguous for a great distance to the stream, which flowed along the great slope from the south towards the St. Lawrence, made the creek the means of transportation for the. marketable product of the labor and enterprise of a great number of people, throughout a large extent of country. The number of people interested in the use of the stream for a particular purpose, the magnitude of the public interests involved, and the fitness of the stream for the carriage of the peculiar article of commerce of a large section of country, were controlling elements in that case.
Rowe v. The Granite Bridge Corporation, 21 Pick. 344, decides, that a creek, below tide-water, would not be public, unless it was “navigable to some purpose useful to trade and agriculture.”
The length of time, for which an appropriation to public use has existed, is prescribed as one of the tests, though' certainly not a controlling one, of a navigable stream. Woolryeh on Waters, 40: Shaw v. Crawford, 10 Johns. 246. Force is given, in most of the cases, to the consideration, that the stream had or had not been long'used for public purposes.—King v. Montague, 4 B. & C. 96. This consideration is entitled to less weight in a new, than in an old country; but the country through which the creek upon the character of which we are passing flows, is not so new as to make it unimportant.
Another inquiry, which is of some importance, in testing the character of a stream, is whether it was omitted from the government surveys.—Ellis v. Carey, 30 Ala. 725.
From the somewhat conflicting authorities which we have examined, we attain the conclusion, that in determining the character of a stream, inquiry should be made as to the following points: whether it is fitted for valuable floatage; whether the public, or only a few individu
Applying the tests above indicated to this case, we decide, that Bashi creek is not a navigable stream. There is no proof that Bashi creek can be used for any purpose, save the floating of timber. There was no proof that the creek could be used, even for that purpose, for a greater distance than about six or seven miles in a direct line. It had never been used before by any person for transportation in any way. It has never been used since by any person for that purpose. It is not shown that there are large and extensive forests, fitted to afford timber for market, contiguous to the stream ; nor is it shown that any great business of transporting timber on it can ever spring up. It does not appear that the public generally, or any large number of persons, will ever use the stream for such purpose. Indeed, the short distance to which the stream can be used, affords a strong argument, that no large number of persons will probably ever use it for floating timber. The stream, even below the mouth of Tallahatta creek, can only be used for floatage in freshets from head-water, or from back-water from the Tombeckbe river. In case of freshets from head-water, it can be used for floating rafts only for a very short time; because the creek, being a short one, runs down very soon. The seasons being unusually dry, it was impracticable, from the spring of 1854, to some time in the winter of ’56, to float spars out of the creek; thus showing that, for long periods of time, it is totally useless, even to float logs. The highest estimate
The holding such streams to be public highways, would be productive of great and extensive injury to individuals and the public. A large number of creeks in the State, never thought of as navigable streams, might be used for floating rafts, for as long a time in each year, and, perhaps, for a greater distance, if advantage were taken of every rise, however short in duration. Every mill-dam on any of those creeks, every bridge over them, every water-gap, and every foot-log, could be treated as a nuisance, at the option of any individual, who might think proper to go up the stream and prepare a raft of timber, to await a rise from a freshet, to float his raft down; and he might sue the owners of mills for all damage sustained, in consequence of the interference of the dams. To regard such streams as navigable, could subserve no useful public purpose, and might prove detrimental to the great manufacturing interests of the State, as well as to the public interest in having suitable bridges on the public roads. Moffett v. Brine, 1 Iowa, 348: Varick v. Smith, 9 Paige, 553; 5 Ind. 103.
The judgment of the court below is reversed, and the cause remanded.