110 Ky. 119 | Ky. Ct. App. | 1901
Opinion op the court by
Reversing.
The appellant in this court was the plaintiff in the court below. She alleged that she was the owner and in possession of a tract of land situated in Lawrence county, Ky., binding on Big Blaine creek, from where it emptied into the Big Sandy river, up the creek for a distance of about one mile; that appellees had without right entered upon her land, taken possession of the banks, and erected booms across the creek, and fastened them to her land, and had thereby caused large quantities of water, logs, staves, ties, etc., to accumulate against the booms, and upon and against her land, and washed1 away her land, trees, bushes, etc., growing upon her land on the banks of the stream, and were threatening to continue to fasten said booms and other booms to her land — all of which, she complained, was greatly to her injury and damage. The first paragraph of defendants’ answer is a traverse of the affirmative allegations of plaintiff’s petition. In the second paragraph they say that Big Blaine creek is a navigable stream of water for the purpose of marketing the produce of the forests binding upon the stream; that the only mode of marketing the products of said forests at a reasonable cost is to float it out on the bosom of the creek during high or small tides; and that to do so, and to prevent the loss of the logs, it was- necessary to erect booms: across said creek to catch and hold them until they could be rafted into the Big Sandy river, and that for this purpose, and for' no other, they use the banks and the timber along the creek, in a careful and prudent manner, and no longer
The principal question to be determined upon this appeal is the rights of persons using a navigable stream for purposes of navigation to use the banks, and trees growing thereon, either permanently or temporarily, for their own use, without the consent of the owner. It is insisted by appellees that the right to use the stream itself as a public highwiay, for purposes of commerce, necessarily includes therein such reasonable use of the banks' hs is necessary to render the use of the stream itself available. This doctrine was announced in the case of Weise v. Smith, 3 Or., 445, (8 Am. Rep., 621). Our attention has not been called to a case where the question has been considered by this court, but it has been frequently decided by the courts of last resort in other States, and it seems to us
In our'opinion, the second and third paragraphs of the answer do not state sufficient facts to support a defense, and .the trial court erred in not sustaining the demurrers filed thereto. It consequently follows that the instructions based upon the averments of these paragraphs were erroneous and prejudicial to the .rights of appellant. For the reasons indicated, the judgment is' reversed, and the cause remanded for proceedings consistent with this opinion.