Haines v. Hall

Tiiayer, C. J. This appeal is from a decree rendered in a suit brought by the respondent against the appellant, to enjoin the latter from floating logs down what is known as Anthony Creek, and to have an account taken of damages done to respondent’s premises in consequence of the appellant using and attempting to use said creek during the years 1886 and 1887. The respondent owns two forty-acre subdivisions of land, situated partly in Union and partly in Baker counties, upon which he has resided for some time, using it as a farm. The creek is a small stream running through the land, down which the appellant claims and exercises the right of floating saw-logs during its highest stages of water, insisting that it is a navigable stream. The respondent denies its being navigable, and alleges that the appellant is doing irreparable injury to his land in attempting to use it for such a purpose. He also alleges that the appellant threatens to, and will unless restrained by the court, continue to use said stream, and that he has already suffered damages to a large amount, occasioned by the acts of the appellant in that particular. The respondent sought by his suit to have decided a question which is more within the province of a jury to determine than that of a court. But the right to run saw-logs down this Anthony Creek has heretofore caused litigation. The case of Haines v. Welch, 14 Or. 319, arose out of a claim to damages in consequence of using it for such purpose; and the circumstances surrounding it are of a character that would indicate that it is liable to be a source of constant contention. Besides, the circuit court seems to have thoroughly investigated the affair, and given it a candid and judicious consideration. I think, therefore, it will be better for all parties to entertain jurisdiction of the case and make a final disposition of it. — 168 — The respondent may have been captious in regard to the use of the stream by the appellant, but the land belonged to him, creek and all, and the appellant had no right to attempt to run his logs down the creek, unless its capacity was such as to render it capable of serving an important public usé as a channel of commerce. The case is not one of casual trespass, but it is one where a right is claimed, which, it is apparent, will be attempted to be exercised continuously; and if the creek, as a matter of law applicable to the facts proved, is not a public easement, the appellant should desist from attempting to run his logs down it, and the respondent has the right to enjoy his premises unmolested. The right to acquire private property is said by Blackstone to belong inherently to every one, but it would be of little value if a party were not allowed to enjoy it free from disturbance. The circuit court in its findings found as follows: That the respondent was, and for nine years past had been, the owner in fee of the land; that it was inclosed by a fence, had a dwelling-house and outbuildings thereon, was occupied by respondent as a home, and had been used by him for general agricultural purposes during his ownership, and that it wras of the value of eighteen hundred dollars; that Anthony Creek entered said land at or near the northwest corner, and ran in a southeasterly course, and passed out near .the southeast corner, being a distance of about three fourths of a mile, considering the sinuosity of the stream; that it entered North Powder Biver a short distance below where it left the respondent’s land; that the creek on the respondent’s land, and for a mile and a half above there, is a small, shallow, rapid, crooked stream, with a general width of twenty to thirty-five feet, as it appeared in 1886, having banks from eighteen to thirty-five inches high, but which frequently fell away on one — 169 — and sometimes on both sides, leaving nothing but a gravel bar for many feet, with little or no bank at all; the flow of water in the creek during the previous summer and fall was very limited, not exceeding twenty or thirty inches, miners’ measure; but usually during the latter part of May and first of June the melting snows in the mountains near by causes the water to increase until the banks in narrow places are nearly full, but where the banks are broken away on one or both sides, the water, unless confined by artificial means, spreads out until it becomes a depth of not more than sixteen or eighteen inches, even in high water; the annual rise of the water is fairly regular in amount, time, and duration of occurrence; that the banks of the creek on the respondent’s land are composed largely of black loam, which washes readily when disturbed in any manner; that the width of the stream did not increase materially for ten years prior to the spring of 1885, but since that time it has increased one third; that in the spring of 1886 appellant deposited in the bed of the creek, at a point about one and a quarter miles above the respondent’s land, about one million feet of saw-logs, and attempted to float them to a point below said land; that eighteen men were engaged for twenty-five days in getting these logs to float during the highest water of the season, but the attempt was an utter failure; few, if an3q of the logs passed respondent’s land at all, the drive being less than two miles, and that there was no evidence showing that the flow of water in that year was less than usual; that no attempt was ever made to float logs in the stream prior to 1883, and the attempts made in 1884 and 1885 were slight and unsuccessful; that in the spring of 1887 the appellant deposited in said creek, about a mile and a quarter above the respondent’s land, two million three hundred thousand feet of saw-logs, for the purpose of floating them to a point below said land; that only one — 170 — million four hundred thousand feet of these logs, and of the one million feet placed in the stream in 1886, and of an unknown quantity placed there prior to that time, ever reached their destination, a point about seven miles below where they were started; and that in order to secure such result, the appellant employed on two miles of the creek, and stationed along the bank, from twenty-five to-thirty-five men with cant-hooks and other appliances to prevent the logs from lodging, to roll them back into the stream, drag them over gravel-bars, turn them around bends in the creek, break jams, etc.; that these men labored in this way on this particular two miles of creek twenty-seven days; that then the logs frequently formed jams, piling up in such quantities as to force large amounts of water out of the bed of "the stream onto respondent’s land; that in order to break these jams it was often necessary for eight or ten men to get hold of a single log with cant-hooks, and drag it for a considerable distance over bars, which process was continued until about a third of the logs in the jam were moved, when the others would usually float; that in attempting to navigate the stream, the appellant placed logs, where its banks were low, at an angle to the stream, so as to expose about one half their length to the action of the water, thereby forcing the water against the opposite bank, so as to increase its depth at that point; also built a reservoir above the respondent’s land, so as by discharging it to increase the volume of water in the creek; that while attempting to float logs, the water in the creek constantly overflowed by reason of logs being in it; the creek was almost full of logs for thirty-eight days; at one time sixteen hundred of them were in the creek on respondent’s land; for five days a thousand logs were in the creek on his land, and not one moved; in 1887, 276 logs were at one time on the bank of the creek on respondent’s land, and — 171 — 51 were left in the stream, and 130 out of the stream on his land; that in floating logs both in 1886 and 1887 the appellant washed out the respondent’s fence where it crossed the creek, and washed out his private bridge, which he had used for many years for passing to and from different parts of his farm; that in attempting to navigate said stream, appellant had committed no. less' than thirty separate and distinct trespasses, many of them irreparable in their nature, and that he threatened to continue such trespassing; that Anthony Creek is not capable of serving an important public use as a channel of commerce by the floating of saw-logs, and that such floating cannot be done so as to be of practical benefit; that by reason of the wrongful acts and injuries committed by the appellant in attempting to navigate said creek in the years 1886 and 1887, the respondent had been damaged in several amounts, aggregating the sum of three hundred dollars. I have examined the evidence submitted in the case, and think it fairly supports the findings of the court; nor do the appellant’s counsel, in their brief, attempt to show to the contrary, except as to the amount of damages which the court found to have been sustained by the respondent. The nature of the damages was such that the amount could not be ascertained by direct proof; they were of such a character that they could not be computed with mathematical accuracy. In this kind of cases a party can do nothing more than to prove the facts and leave the jury, or court when tried without a jury, to estimate the damages. The respondent could not possibly show the amount of his injuries in dollars and cents; the greater part of the injury doubtless consisted in the annoyance, perplexity, and disturbance to which the respondent was subjected in consequence of — 172 — the acts of the appellant; and it is the province of a jury or court in such a case to make a fair estimate of the amount which a party should pay for occasioning such annoyance, perplexity, and disturbance. . This affair of the appellant’s attempting to navigate his logs down Anthony Creek through the respondent’s land has been going on during two seasons, and in any view was wrong. If he had a right to use the waters of the creek for such purpose, ho had no right to station his men along its banks to float the logs, or allow the logs to go onto the respondent’s land or injure the banks of the creek, or turn the stream out of its banks onto the land. No one has the right to use the property of another for his own convenience without the consent of the latter. The right to acquire, enjoy, and control private property in any manner not injurious to the rights of others is a natural as well as a constitutional right, and no injury arising out of an infringement of it should be allowed to pass unredressed. Whether the creek in question is navigable or not for the purposes for which the appellant used it depends upon its capacity in a natural state to float logs and timber, and whether its use for that purpose will be an advantage to the public. If its location is such and its length and capacity so limited that it will only accommodate but a few persons, it cannot be considered a navigable stream for any purpose. It must be so situated and have such length and capacity as will enable it to accommodate the public generally as a means of transportation. A stream that cannot be used without employing the means and appliances which the appellant made use of in order to float his logs down this one certainly ought not to be regarded as a public highway for any purpose. The circuit court found, as we have seen, that Anthony Creek is not capable of serving an important public use — 173 — as a channel of commerce; and I think its findings in that particular is fully warranted by the evidence in the case. Courts went to the extreme verge of authority to interfere with or abridge private rights when they held that a stream of water included within a private- grant constituted a public easement in any case. Such holdings bear a strong resemblance to the encroachment upon the immunity guaranteed in the constitution that private property shall not be taken for public use without just compensation. It would, in my opinion, be much more in consonance with the spirit and principles of our government to have left the matter to be regulated by the legislature, which has authority to pass laws for establishing public highways, and to provide for such compensation. We are, however, committed to the doctrine that a stream of water which is of sufficient extent and capacity to float logs and timber from mountainous regions to market, and can be utilized thereby for the benefit and advantage of the community at large, notwithstanding it is included with the land owned by private individuals, is, nevertheless, a public navigable.stream for such purposes; and we must accept that doctrine as the law. But I am not willing to extend it so as to include every little rivulet or brook which runs across a man’s farm, although its waters may be so swollen for a short time every year by the melting snow in its vicinity as.to enable logs and timber in limited quantities to float down it, and, by the adoption of extraordinary means for that purpose, convenience one or two neighbors in so using it. The appellant’s counsel strongly insist upon the rule that a court of. equity will not entertain jurisdiction in ordinary matters of trespass. I am mindful of the rule, and have no intention or desire to depart from it. I would not undertake to maintain that a court of equity has juris — 174 — diction to take cognizance of the violation of any legal right, unless the circumstances are of such a character as to bring the case under some recognized head of equity jurisdiction. Equity, however, affords a remedy to enforce a legal right when the remedy at law is incomplete and inadequate to give such relief as the nature of the case demands; and I think the respondent can reasonably invoke the benefit of that principle in this case. I do not regard it as an ordinary case of trespass; the respondent has his little farm, which he is endeavoring to cultivate, in order, I suppose, to provide a living for himself and family. Parties interested in timber a short distance above his farm claim the right to float it down a small stream which runs through his premises, to his detriment and annoyance. He has already had litigation with one party for attempting similar acts. That fact is alleged in the complaint in this suit, and the records of this court substantiate it. He brought an action in the said circuit court against a certain party on account of similar acts, and recovered a judgment against him for the sum of fifty dollars damages, which this court in the case before referred to affirmed. Thereafter, this appellant engaged in the same scheme; and others we may presume are liable to engage in it also; and if the respondent were compelled to protect himself by bringing an action for each trespass, it would soon utterly impoverish him. The evidence in the case shows, and we can easily understand, that the injury, being done to his premises on account of such acts, is permanent and irreparable; and he certainly ought to have the right to have it specifically determined as to whether or not they are subject to the servitude claimed. It is the only way I can discover by which the right and title to the premises can be effectually quieted. The respondent, — 175 — it is true, can have it determined in an action at law as to whether or not the stream is navigable as claimed; but in the mean time the appellant will be enabled to destroy its banks, thereby widen the stream and wash away other portions of the soil adjacent thereto, which will be the natural and proximate result of the course he has been pursuing. I am of the opinion that the decree appealed from should be affirmed.