Nutter v. Gallagher

Thayer, O. X, delivered the opinion of the court. The main question in this caséis whether the respondent, at the time of the commencement of the suit, was obstructing and threatening to obstruct a navigable water [381] way leading from appellant’s land across the land of respondent into wbat is known as “Young’s river.” The testimony bearing upon the question is rather voluminous but extremely vague upon some of the material points in the case. The appellant contends that a certain slough, known as ‘ ‘Vincent’s slough, ” extends from his land, either directly to Young’s river or into other sloughs connecting with it, constituting an uninterrupted course of navigable water from his premises to said river, which is admitted to be a navigable stream. It appears that said Vincent’s slough extends across a part of respondent’s land south toward the land of appellant, and that a slough or gulch, in which flows a small stream of water, runs from the appellant’s land into it; but that ordinary flood tides reach the appellant’s land through said slough or its branches, is strongly controverted by the testimony of the respondent. It does appear, however, that the appellant, his grantors and1 predecessors, opened a channel from said slough or gulch upon his land into said Vincent’s slough at a point known as Vincent’s landing, by clearing the logs and brush from the gulch, deepening the channel thereof, and cutting a channel or ditch through solid ground, and that he used the same at extreme high tides to float saw logs from his premises to said slough at said point, and for other purposes, as found by the circuit court in its findings of fact. Whether this improvement of the channel renders Vincent’s slough navigable from appellant’s land to Young’s river is, as I understand, the real point in issue between the parties. The circuit court decided that Vincent’s slough was not a navigable slough above Vincent’s landing, and I think its conclusion upon that point was clearly correct. This court in Haynes v. Hall, 17 Or. 165, held “that the doctrine that a stream of water is navigable if of sufficient extent and capacity to float logs and timbers from mountainous regions to market, and might thereby be utilized [382] for the benefit and advantage of the community at large, could not be extended so as to include small streams of only a few miles in length, although they rise during a few weeks in the year sufficiently high to be used to a limited extent by the application of artificial means, to float logs and timber a short distance.” In the present case the stream or water-course from appellant’s premises to Vincent’s landing was only a few rods in distance, and between those two points it had no capacity for general purposes of navigation. No one but the appellant can utilize it, and he cannot only for a few days during the year. There is no pretense that it can be of the slightest service to the public generally, or that it was intended to be so. Those who made the improvement did so for the sole benefit of the owners and occupants of the land now belonging to. appellant, and if it were done with the consent of the owners of the land now belonging to respondent, it would only amount to a temporary license, as a permanent right in favor of the appellant to maintain such a channel across the land of 'respondent could only be created by grant, or by prescription, which presumes, a grant. If the question, therefore, whether the appellant’s right to have the respondent enjoined on account of the matters alleged in the complaint, depends upon the navigability of the slough from Vincent’s landing to appellant’s premises, he must necessarily fail. But whether or not that is a vital point in the case* I have been, unable to learn from the pleadings, proofs and findings referred to in the foregoing statement. They vaguely hint that the respondent is diking his land somewhere below said landing; in what manner, however, he is doing it, or at what particular locality it is being done, does not appear. If he is doing the diking in such a manner that it will obstruct the navigation of the slough to said landing from points below there, he is doubtless doing a wrong; but that fact, so far as I can discover from the transcript, is in the dark. The circuit court, it appears, dismissed the appellant’s complaint upon the ground that the slough was not navigable above Vincent’s landing, and [383] in the absence of any showing that the diking would interfere with its navigability or with the rights of the appellant, we must conclude that it would not affect either. Hence the decree appealed from must be affirmed.