Whisler v. Wilkinson

Dixon, C. J. The rivers of this state capable of floating the products of the country, such as saw-logs or rafts of lumber, to mill or market, are by the common law public highways by water; The authorities cited by counsel for the defendants are abundant to this point. It would be exceedingly detrimental to the public interests,, especially in the pine-growing regions of the state, if this were not so. The river upon which the plaintiff’s mill is situated, is of this character. It appears from the testimony of some of her own witnesses, that it is large enough above her mill to float logs of the common size at an ordinary stage of water. It furthermore appears beyond dispute, that it has been constantly used, at all proper seasons-of the year, for the purpose of floating logs to mills below, for a period of over twenty years. It was likewise shown by witnesses on both sides, that at the time the defendants’ logs were run down the river to the plaintiff’s pond, it was exceedingly difficult, if not wholly impossible, to pass them through the chute constructed in the dam at her mill for that purpose, hut that they were easily floated through the break in the dam, or cut-off of the stream, passing around the mill, occasioned by the break. The difficulty of passing the logs through the chute arose partly from low water in the chute, caused [577] by the break in the dam, and partly from the obstruction of the chute by a jam of logs which had been run into the plaintiff’s pond some time before for the purpose of being sawed at her mill. The break in the dam, and consequent cut-off, by which a new channel had been formed, had existed for a period of two months or thereabouts, without having been repaired by the plaintiff' so as to restore the river to its former condition. ■ "What, under these circumstances, were the rights of the defendants in relation to running their logs ? We think clearly, with proper care to prevent any unnecessary damage to the plaintiff, they were entitled to run their logs through the cut-off or new channel, and consequently that the court erred in refusing to give the second' and third instructions asked by the defendants. By the Court. — The judgment must be reversed, and a venire de novo awarded.