4 Ga. App. 7 | Ga. Ct. App. | 1908
Sikes and others brought suit against the Seaboard Air-Line Railway to recover damages resulting to them from the erection of a bridge across the Canoochee river. They allege that the Canoochee river is a navigable stream which the public has the right to use as a highway, and that the river has been in fact used by the public for the purpose of drifting and floating lumber, timber, and logs to market so long that “the memory of man runneth not to the contrary;” and they assert that the public has 'therefore acquired a right by prescription to such use of the river. The Seaboard Air-Line Railway erected a bridge across the river, which it is asserted prevents the enjoyment of this right, by obstructing the passage of rafts, the arches supporting the bridge over the river being too narrow to permit rafts to pass between them. They base their claim for damages in the present suit on the following facts: They had information that the railway, in erecting the bridge over the river, had constructed it so as not to
The undisputed evidence shows that the Canoochee river is a small, crooked stream, incapable of floating freight or passenger boats, and “only used for rafting timber and fishing.” In its ordinary condition it is incapable of floating rafts, and only when the volume of water is increased by rains can it be so used. This use has not been constant or continuous during this period, bur sometimes has been discontinued for several years. The owners of the land adjacent to the river have never interrupted or objected to such use. The river, where this bridge crosses, is from 75 to 100 feet wide, and the bridge is located on the right of way of the railway, and the space between the arches supporting the bridge across the river is from sixteen to seventeen feet wide. This general statement of the evidence is sufficient to illustrate the questions of law involved.
We think a new trial should be granted in this case, because of errors set out in the 4th, 5th, and 6th divisions of this opinion.
Judgment reversed.