Felger v. Robinson

Boise, C. J. The main questions for this court to determine, are 1st, was the ruling on the demurrer correct. The allegation in the answer is, “that said Mary’s river was duly declared navigable for the purpose of floating logs by the Board of County Commissioners of the county of Benton, * * * in pursuance of law, etc., from said Metzger’s mill (the mill in question), to the farm of Wm. Wood in King’s valley, said county, etc., and said logs were floated on said stream, within said points.” There is no allegation that, by said declaration of navigability, defendants were authorized to float saw logs over and past said dam, and the damage complained of is, that the logs broke said dam, and thereby caused the injury complained of. The right to float logs between certain points, would not justify their doing damage at the terminus. The same reasoning would dispose of the second point, provided there was a right by prescription between the same points, for, in the parts of the answer affected by the ruling on the demurrer, navigability is only claimed between Metzger’s mill and Wood’s farm, so we think the ruling on the demurrer can be sustained. But the view which we have taken of the case renders these parts of the answer immaterial. We hold the law to be, that any stream in this state is navigable, on whose [458] waters logs, or timbers can be floated to market, and that they are public highways for that purpose; and'that it is not necessary that they be navigable the whole year for that purpose to constitute them such. If at high water they can be used for floating timber, then they are navigable; and the question of their navigability is a question of fact, to be determined as any other question of fact by a jury. Any stream in which logs will go by the force of the water is navigable. Such is the rule in Maine, where small streams are used to great advantage in bringing logs from deep forests to places convenient for use. (Moor v. Veazie, 32 Maine, 343; Treat v. Lord, 42 Maine, 552; Brown v. Scofield, 8 Barb. S. C. R. 243.) ■Such is now the settled law in those states that have adjudicated this question. And we think it the rule that best accords with common sense and public convenience, for these rapid streams, penetrating deep into the mountains, are the only means by which timber can be brought from these rugged sections, without great labor and expense; and by their use large tracts of timber, otherwise too remote or difficult of access, can be rendered of great value, as the country shall grow and timber become scarce. The question as to whether the legislature has authority to declare a stream navigable, is not material here. There is no doubt but the legislature has the authority to regulate the navigation of these streams, and make provisions for passing dams and booms, and it will undoubtedly express its authority in this respect, as this matter shall assume more importance. As there is nothing before the court in this case, except the ruling of the court on the demurrer to the complaint, the court does not have before it the merits of the case, to ascertain on what grounds the verdict was found, or whether in fact the jury considered the question of the navigability of Mary’s river, and we are not at liberty to go beyond the record; but I will here say, that if Mary’s river is capable of floating logs from along its'bank to the Willamette river, or to mills on its own banks, then it is a navigable stream.! The judgment below will be affirmed.