72 Ala. 456 | Ala. | 1882
The original bill, filed by the appellee, seeks an injunction restraining the defendant from constructing a boom across a stream in Jackson county, known as Paint-Roch river. It is not averred that from the construction of the boom any injury will result to the property, or to the rights of property of the complainant; that he owns lands on or adjacent to the stream, which will be overflowed; or that there will be a diversion of the flow of the water from its natural current, which will cause him detriment. The gravamen of the complaint is, that the navigation of the stream will be obstructed, and the complainant hindered in its use for the floatage of saw-logs from points above, to a saw-mill on the stream below the boom. If the stream is a navigable river — a public highway, open and free to the reasonable uses of all citizens for passage or transportation — the obstruction of its navigation is a public nuisance, which a court of equity will interfere to prevent or restrain, at the instance of a citizen who is suffering, or will suffer, special, irreparable injury from its erection or continuance.
The first question presented by the demurrers is, whether it appears from the allegations of the bill that the stream is a navigable stream, or river, upon which the public have a right of way. The tests by which it is determined whether a stream is navigable, subject to public use, have been distinctly stated in several of our decisions.—Bullock v. Wilson, 2 Port. 436; Ellis v. Carey, 30 Ala. 725; Rhodes v. Otis, 33 Ala. 578; Peters v. N. O., M. & C. R. R. Co., 56 Ala. 528. It is not the ebb and flow of the tide, which, as in England, constitutes the usual, or, it may be said, any test at all of the navigability of waters, by which we mean their subjection to public use. The
'When the facts are ascertained, whether a stream or water is navigable, is a question of law. The whole question is a mixed question of law and fact.—Rhodes v. Otis, supra. In this case, the court said; “ 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 individuals, are interested in its transportation; whether any great public interests are involved in the use of it for transportation; whether the periods of its capacity for floatage are sufficiently long to make it susceptible of use beneficially to the public; whether it has been previously used by the people generally, and how long it has been so used; whether it was meandered by the government surveyors, or included in the surveys; whether, if declared public, it will probably in future be of public use for carriage.”
The bill contains no more than the averment that the stream is a navigable river, and that for a period of eighteen months before its filing the complainant had used it, from points above the point at which the defendant threatens to construct the boom, for the floatage of saw-logs to a saw-mill below it. There is no averment that it had been at any previous time used for the purposes of transportation, or of floatage; of the distance for which it is capable of use, nor of the seasons or periods of the year when it is capable of use. Nor is there any averment that there are large and extensive forests contiguous to the stream, fitted for furnishing marketable lumber, inducing a continuous business of transporting logs or timber upon it. There is the simple averment, that the stream is a navigable river. We know judicially that within the limits of Jackson county there are no tidal streams, which prima facie navigable and public — that all its streams are fresh water, and prima faoie
In view of the meagre statements of the bill, and of the possibility that by amendment a case may be made of equitable cognizance, we forbear a discussion of other questions raised by the assignments of error. The true rule, that which is deducible from our former decisions, to which we have referred, and by which the right of the complainant must be determined, is, that every stream which, in its natural state, and its ordinary volume of water, is capable of being usqd for the purposes of commerce, of transportation of the products of the fields, forests, or mines upon its banks, in a marketable condition, is for the purposes of navigation to be deemed public — upon its waters the public have a right of way, or easement, which is superior to the right of the riparian proprietor, though he may own the soil of the bed. It is not essential that continously, at all seasons of the year, the ordinary state of the waters should render them navigable — it may be subject to periodical fluctuations, attributable to natural causes, recurring as regularly as-the seasons; and if its periods of navigability continue a sufficient length of time to make it of public use as a highway, then it is subject to public uses.—The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 430; Morgan v. King, 18 Barb. 277; s. c., 35 N. Y. 454.
The chancellor erred in overruling the causes of demurrer numbered from one to five, inclusive; and for the error the decree must be reversed, and the cause remanded.