Wooden v. Mt. Pleasant Lumber & Manufacturing Co.

Grant, J. (after stating the facts). 1. Tbe defendant is not in position to raise tbe question of tbe regularity of the proceedings before the board of supervisors. No interference with its right of navigation for tbe purpose of running logs is claimed. Tbe plaintiff obtained tbe right of flowage over all tbe land affected thereby. Her business is a lawful one. The defendant is not injured by her act. It was not at tbe time engaged in navigation. Tbe stream at that time was covered with ice and snow, and could not be navigable until spring, after tbe ice and snow bad melted. Land-owners are entitled to the natural flow of the water, subject to such interference as is caused by tbe use of tbe stream for navigation in tbe usual manner. Even if plaintiff’s dam was constructed without proper authority, defendant, could not maintain a direct action to abate it as either a public or a private nuisance so long as defendant is not injured thereby. Gould, Waters, § 364; Brown v. [414] Perkins, 12 Gray, 89. Much less will defendant be permitted to attack it collaterally. 2. Briefly stated, the second def ense is that a log owner may lawfully fill the bed of a stream with logs in winter, when it is not navigable, and obstruct 'the natural flow of the water for months, depriving land-owners below of its natural use, and flooding the lands above. The proposition carries with it its own refutation, and no argument can make it clearer. Land and mill owners are entitled to the natural flow of the water, subject to the reasonable use for the purposes qf navigation. Had these logs been placed in the river when it was navigable, for the purpose of running them, a different question would arise, which need not now be discussed, as it is not before us. The defendant was not using the stream for navigation, and its act was unreasonable and unlawful. As applied to the facts of this case, the instruction of the court below that the plaintiff was entitled to the natural flow of the water, so as not to injure her business, was correct. Judgment affirmed. McGrath, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.