Pascagoula Boom Co. v. Dixon

TeRR.au, J., delivered the opinion of the court. The appellants, complainants below, sought a mandatory injunction against the defendants for the removal of a boom placed by them in the Pascagoula river, as a public nuisance, causing them special damage. This river is alleged in the bill and admitted in the answer to be a navigable stream for logs, rafts and boats; and it is admitted that for the purpose of improving the navigation the national government makes an annual appropriation. At the point on the river v'here the obstruction complained of is located, the defendants, J. I. Dixon & Co., are the owners of the eastern bank of the river, and have a lease of the lands on the western side of the river, and so they are, in effect, the [592] 'owners, as respect to this controversy, of both banks of the river at that place. They have erected a sawmill upon a cutoff, or dead river, which adjoins the river on the eastern side, and the dead river forms a receptacle for the safe-keeping of their logs. In order to stop these logs and to convey them into this dead river, they constructed a boom across the river from the one side to the other. A part of the boom is stationary, but there is a swinging boom near the centre of tire stream five hundred feet long which is usually kept open, but which may be closed in cases of necessity. There is also a swinging boom at the eastern or southern end of it, which permits of being opened and closed at the pleasure of the defendants, and which was constructed for the purpose of passing down the stream the logs of others, which accidentally or otherwise might be stopped by the main boom. The defendants usually kept the main swing boom open, so that a large space near the center of the stream was left open for the passage of logs and rafts down the river; but when there ivas a freshet in the river, and there was a drive of the defendants’ logs coming down the stream, it was necessary, in order to stop them all, to close the boom entirely, so that no logs could pass. When the river was not too high, the defendants kept the main swing boom only partly closed, and had employes stationed there to pass through all logs not their own; but in order to stop their own logs it was frequently necessary for the defendants to close the river entirely. In some jurisdictions it is held that the riparian owners may make such erections upon his own land as his convenience or business may require, though navigation be inconvenienced thereby, provided it be not wholly obstructed. At common law, however, a navigable river is a public highway subject to public use, and the right of passage over it extends to all parts of the channel, and any obstruction of the channel is a public nuisance. Williams v. Wilcox, 35 E. C. L. R., 396-400; Virgil [593] v. Devinel, 50 Maine, 488; Sherlock v. Bainbridge, 41 Ind., 35; Atlee v. Packet Company, 2 Wall., 389; Morgan v. Reading, 3 Smed. & M., 366-406; Comm'rs v. Withers, 29 Miss., 21, 37. Section 81 of the state constitution embodies this principle of the common law as follows: “The legislature shall never authorize the pernnment obstruction of any of the navigable waters of this state, but may provide for the removal of such obstructions as now exist, whenever the public welfare demands. This section shall not prevent the construction, under proper authority, of drawbridges for railroads, or other roads, nor the construction of ‘hooms and chutes’ for logs in such manner as not to prevent the safe passage of vessels, or logs, under regulations to be provided by law.” The plain interpretation of this section of the constitution is that booms for logs which prevent the speedy passage of rafts and logs down the stream, must have legislative warrant .for their existence before they can be constructed. “All navigable waters are for the use of all the citizens, and there cannot lawfully be any exclusive private appropriation of any portion of them.” Cooley Cons. Lim. (5th ed.), 728. We are of the opinion that the boom of the defendants in the Pascagoula river, is a public nuisance, and that the particular right of the complainants gives them a right to the remedy sought by them. Hartford v. Bridge Co., 14 Conn., 565. Reversed.