[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 488
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 489 It is not claimed that the North-west Bay brook is in its nature, under common-law rules, a navigable stream, and that as such the defendants have any rights therein; nor is it claimed that they have any private right to use the stream by prescription, as they and those under whom they hold had not used it for any purpose for the time and in the manner required to gain a prescriptive right. But the claim is (and so it was held at the trial term) that the public had acquired a prescriptive right to use the stream for floating logs, and that these defendants, therefore, as portions of the public, and in the rights of the public, had the right to use the stream and its banks for the purpose named.
We do not deem it important now to determine, and we do not decide, whether or not the public can acquire, by prescription, an easement to use any stream for floating logs or any *Page 490 other purpose. The question has been considered in several cases in this State. (Shaw v. Crawford, 10 Johns. 236; Munson v.Hungerford, 6 Barb. 265; Curtis v. Keesler, 14 id. 511;Clements v. Village of West Troy, 10 How. Pr. 199; Post v.Pearsall, 22 Wend. 425.)
Even if user could give a prescriptive right to the public there was no such user here as could give such a right. The public generally have never used and could never use this stream. In the whole thirty years covered by the evidence it does not appear that as many as a dozen different persons used the stream for floating logs, and generally not more than three or four different persons used the stream in any one year; and the user did not exceed about six days in any year, and some years not more than three. The stream is less than five miles long, two of which are through plaintiff's lands. Such a stream, capable of being used by a very limited number of persons, is not adapted to a public use, and such a use as existed here could not confer a public right which could be enjoyed by the public at large.
The cases above cited show that there could be no claim that this stream had been dedicated to the public use, and indeed such a claim has not been made.
It is, therefore, entirely clear that the defendants had no right to float logs down this stream through the lands of the plaintiff.
But it is claimed that the facts of this case did not authorize equitable interference or sustain the jurisdiction of an equity court, and it is upon this ground that the General Term affirmed the judgment of the Special Term. The defendants threatened to float a large number of logs over the plaintiff's lands, using the stream and its banks for that purpose, and they would thus do some damage to the banks of the stream and other lands of the plaintiff. They would occupy the stream for several days. Not only this, they claimed the right to float the logs, and asserted, in substance, that they would do so whenever they chose to. By continuing to exercise the right they might, by lapse of time, be able to prove and establish *Page 491 a right by prescription. They not only claimed a right for themselves but for the public — for everybody. That in such a case, upon such facts, a plaintiff may maintain an equitable action to quiet his title and settle his rights and prevent the threatened injury is abundantly settled by authority. (Angell on Water-courses, § 449; 2 Story's Eq. Jur., § 927; 3 Pomeroy's Eq. Jur., § 1351; Holsman v. Boiling Spring Bleaching Co.,14 N.J. Eq. 335; Campbell v. Seaman, 63 N.Y. 568; Johnson v.City of Rochester, 13 Hun, 285; Swindon Water-works Co. v.Wilts. Berks. Canal Co., L.R., 7 H. of L. 697; L.R., 9 Ch. App. Cas. 451; Clowes v. Staffordshire Potteries, 8 id. 125, 142; Goldsmid v. Tunbridge Wells Improvement Commissioners, L.R., 1 id. 349, 354.)
This is not a case where the defendants threatened only to commit a single trespass, but they threatened to commit, and claimed the right to repeat, the trespass every year. Here a preventive action was proper to prevent an irreparable injury within the meaning of the equitable rule, and also to avoid a multiplicity of suits.
The defendants were properly united. They claimed a common right hostile to the plaintiff. They asserted a public right common to many. In such a case all the parties asserting the common right may be united as defendants in an action by one who seeks to overthrow the common claim, and establish his right against all claimants. (Varick v. Smith, 5 Paige, 137;Dimmock v. Bixby, 20 Pick. 368, 377; Woodruff v. NorthBloomfield, etc., 8 Sawyer, 628; Hillman v. Newington,57 Cal. 56.)
As the plaintiff, therefore, when he commenced this action had the right to maintain the same upon the facts then existing, he could not be defeated, because, since the commencement of the action, the logs had been floated down the stream. The court having acquired jurisdiction should retain it to administer complete justice. The real importance of the action still remains, to-wit, the defendant's right. That may be settled, and the damages sustained by floating the logs may be awarded to the plaintiff. *Page 492
We are, therefore, of the opinion that the judgments of the Special and General Terms should be reversed and a new trial granted, costs to abide event.
All concur.
Judgment reversed.