Weise v. Smith

Upton, J. It is conceded in the argument, that, to some extent, or for some purposes, the Tualatin river is a navigable stream from its mouth to many miles above the place in question. At the point of the alleged trespass, or a short distance above it, the river is not navigable for boats, but for the whole distance, the stream is available as a means of conveyance .for saw logs. One of the circumstances set up by the plaintiff, as a basis for additional damages, is that immediately at the place where the boom was stretched, the plaintiff had occasion to navigate the river with his skiff; and that, by the alleged wrongful acts of the defendant, that navigation was interrupted. The 'chief inquiry and point in issue, touches the relation and liabilities existing between riparian proprietors, and persons using the stream, for purposes connected with navigation. It 'is necessary to consider how far the principles and rules that have been applied to affairs pertaining to the navigation of tide waters and large streams, capable of floating ships of commerce, are to be applied to streams like the one under consideration. While it is conceded by the appellant, that the Tualatin river is to a certain extent navigable, it is claimed that it is' “ a fresh water' stream above the ebb and flow of the tide,” and hence the rules applicable to arms of the sea, and great rivers, where the tide ebbs and flows, are not applicable here. . It may be considered the settled law of the United States, that so much of the doctrine of the common law of England, as made the ebb and flow of the tide a test of navigability, is not now applicable in the United States. On the contrary, the maxim of Lord Mansfield; “out of the fact arises the right,” is applied by the courts of this country. (Morgan v. King, 35 N. Y. 454; Jones v. Pettibone, 2 Wis. 308.) It is held more rational to determine the question of navigability or unnavigability of a stream, from the fact of navigation or otherwise, than from a circumstance which [449] may or may not be conclusive evidence of its navigability. (People v. Canal Appraisers, 33 N. Y. 472.) The case just cited, is a very full and thorough exposition of the test of navigability, and it is more than inferable, from the reasoning in that case, and in the numerous American cases there cited, that if a stream is in fact capable, in its natural condition, of being profitably used for any kind of navigation, its use is to that extent subjected to the general rules of law relating to navigation, applicable to the circumstances of the case. The large amount of lumber business done in the state of Maine, has undoubtedly led the courts of that State to give great consideration to the particular subject involved in this case, and they hold to the same rules on the subject of the use of small streams, that are announced in the case last cited. A stream, which, in its natural condition, is capable of being commonly and generally useful for floating boats, rafts or logs, for any useful purpose of agriculture or trade, though it be private property, and not strictly navigable, is subject to the public use as a passage way. (Brown v. Chadbourne, 31 Maine, — : 42 Maine, 558.) “Though the adaptation of the stream to such use may not be continuous at all seasons, and in all its conditions, yet the public right attaches and may be exercised whenever opportunities occur.” (Id.) “When a stream is inherently and in its nature capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts or logs, the public easement exists, notwithstanding it may be necessary for persons floating logs to use its banks.” (Id.) “The Penobscot river above the tide is not a navigable stream, technically speaking, although a highway, float-able for boats, rafts or logs, and as such, subject to the public use.” (Veazie v. Dwinell, 50 Maine, 479.) “No person has a right to permanently obstruct the channel of such stream by a boom across it, though he may do so temporarily, if necessary for the useful navigation of the stream.” (Davis v. Winslow, 51 Maine 264.) [450] The court in this case remarks: ‘‘What is reasonable use, or due use, depends in every case on the subject matter, to which the case is to be applied, and the circumstances attending the subject matter at the time.” Every person has an undoubted right to use a public highway, whether upon land or water, for all legitimate purposes of trade and transportation, and if in doing so, while in the exercise of ordinary care, he necessarily and unavoidably impede or obstruct another temporarily, he does not thereby become a wrong doer; his acts are not illegal, and- he creates no nuisance ,for which an action can “be maintained. If we concede the correctness of the reasoning in the above cases, it follows, 'that upon “a stream capable of being commonly and generally useful for floating boats, rafts or logs, for any useful purpose,” and consequently “subject to the public use as a passage way,” the persons lawfully using it can invoke in their favor all general rules of navigation that are in the nature of things applicable to the particular circumstances and kind of navigation. How far, then, may one, who has an undoubted right to navigate the stream, meddle with or touch upon the bank of the stream, which is private property? Whatever he has is founded upon necessity. If he has a right to meddle with the bank, it is only an incidental one. Although the riparian owner has an absolute righj; to enjoy his land, in all proper ways, the- adverse party has an absolute right, as one of the public, to navigate the stream. Neither one can justly deprive the other of his rights. If the riparian proprietor could deny the navigator the right to come to land, in a case where the business of navigating could not be performed, without the privilege of landing, he could deny all use of the stream. He would thus overturn all that was contended for and adjudged in the cases above cited. While it is beyond question that the riparian owner is entitled to be protected from any unnecessary intrusion on his premises, it is equally certain that he cannot, solely for the maintenande of an abstract right, or an exclusive possession, deny to the public the [451] right of navigation. He takes liis title subject to this right vested in the public. If there had been no necessity for fastening the boom to the plaintiff’s land, the act of fastening it would have been a trespass, for which the plaintiff ought to recover nominal damages at least; but, if the act was necessary in order to enable the plaintiff to exercise a right of navigation, no cause of action would lie for a bare intrusion, which worked no appreciable damages. Whether the necessity existed was a question for the jury. It was said in argument “ the respondent claims the right to obstruct the river as a public right.” I think this was stating the respondent’s claim too strongly; he claimed the light to attach his boom as a public right, and as necessary in order to use the stream, and it is true that the boom if kept attached too long became an obstruction, but he sought to excuse b is act of leaving the boom attached a considerable time upon the plea that an unexpected rise of water rendered it impossible to detach it sooner. If he had a right to extend the boom to catch the logs, he of course had a right to keep it extended, a reasonable time for that purpose. The question, what was a reasonable time for the removal of the boom was a question of fact, and was properly left to the jury. The record does not disclose that the plaintiff was injured, or that admitting proof that the plaintiff had permitted booms to be placed on his land on previous occasions the court erred in that particular; for aught that appears by the record, it may have been properly offered in mitigation of damages. Judgment should be affirmed.