concurring: His Honor held that, assuming the truth of the facts testified to, the plaintiff was not entitled to recover; whereupon, the plaintiff submitted to a nonsuit and appealed. This makes it necessary for us to consider the evidence in the most favorable light to the plaintiff, and determine whether he had entirely failed to make out his case, or was there sufficient evidence to have been submitted to the jury Upon proper issues before the judgment of the Court ould be pronounced. No issues seem to have been framed, but several interesting questions must have been presented to the jury, if, in the opinion of the presiding Judge, the evidence had called for their consideration. Upon the main issue, whether the plaintiff’s dam and fishery had been destroyed by the negligence of defendant, as alleged in *555the complaint, there ai’ose questions which might have been' framed into other issues, or comprehended in that which has been indicated as the principal one arising upon the-pleadings.
After having ascertained from the evidence whether the plaintiff, as he alleged, was the owner of land upon the banks of the French Broad River, and in the possession of' valuable erections in the stream used by him as a fishery, it would have been necessary for the jury to have ascertained the character of .the stream — whether the same is such a. stream as is capable of being used for floating rafts, boats- and logs, and is in this sense a navigable stream and subject to the public use as a public highway and easement, as-alleged in the answer. It is purely a question of fact dependent upon the capacity of the stream, the products of the-country, and the profitableness or unprofitableness of its use-in that manner. Wood on Nuisance, sec. 464, 2d ed.
The leading case on the subject of the law of watercourses-in North Carolina is State v. Glenn, 7 Jones, 321, in which the late Judge Battle, in a very able opinion, discussed the rights of the public, and of the riparian^owners, and of the-owners of the beds of these streams. He divides them into three classes—
“1. All bays and inlets on the coast where the tide ebbs- and flows, and all other waters which can be navigated by sea-vessels, are navigable waters, publici juris — not confining them to the criterion of ebb and flow which obtains in England.
“ 2. All the rivers, creeks and other watercourses not embraced in the above description, but which are in fact sufficiently wide and deep to be navigable by boats, flats- and rafts, are technically styled unnavigable, and are open to be appropriated by individuals by grants from the State-under the^entry laws. When the bed of the watercourse is-not included in the grant, but the stream is called for as one^ *556of the boundaries, the grantee is entitled, as an incidental easement, to go to the middle of the stream, and may exer•cise and enjoy that easement for the purpose of catching-fish, or in any other manner not incompatible with the right -which the public have in the stream for water communication between different points on it.”
In the third class he places all the rivulets, brooks and -other streams which from any cause cannot be used for intercommunication by inland navigation, and these, he says, are •entirely the subjects of private ownership.
While it will be noticed that the second class is by his definition confined^to such as are sufficiently wide and deep to '.be navigable by “ boats, flats and rafts,” no mention is made of logs. The timber interests had not then assumed the proportions which they have at this day in North Carolina, but it is interesting to note that during the same year, and some months before the opinion was delivered, the Qeneral Assembly had passed an act amending chapter 100 of the Revised •Code, concerning rivers and creeks, and giving the Commissioners power to “ lay off gates, with slopes attached thereto, upon any mill-dam built across such stream, of such dimen.•sions and construction as shall be sufficient for the convenient passage of floating logs and other timber,in cases where it may ■be deemed necessary,” &c. Thus it will be seen that the Legislature at that time recognized the necessity of keeping open the streams for the passage of timber, then as now an important article of commerce, and it may well be that logs would have been included in the list with boats, flats and rafts, if "the attention of the learned Judge had been called to it. It will not be necessary to cite the many cases in our Court, before .and since that to which I have specially referred. But in the case of McLaughlin v. Manufacturing Co., 103 N. C., 100, for the first time I see an allusion to another class of streams -called floatable — a term now in general use, especially in *557those States where there are great timber interests, as in the-Northeastern States and upon the Great Lakes.
Floatable streams are said to be “ capable of valuable use in bearing the products of mines, forest and tillage of the-country it traverses to mills and markets.”
I am inclined to admit (and I suppose his Honor was of this opinion) that from the testimony in this case it was proved that the French Broad river, at the point of inquiry and above and below, is a floatable stream, but if from this assumption he was led to the conclusion that therefore the defendant might place his timber in the river to be carried by the rising waters without a guide or driver, and without regard to the safety of the property of riparian owners and their erections in and upon the stream, and if for this reason he intimated his opinion that upon his own evidence the plaintiff was not entitled to recover, I have grave doubts as to the correctness of the conclusion. Clearly, under our authority, from the earliest case cited in State v. Glenn to McLaughlin v. Manufacturing Co., it is held that the owners of' the adjacent lands had the right to use the water to the thread of the stream in the watercourses styled technically unnavigable, even where the bed of the stream had not been granted, so as not to obstruct the public or its right of floatage.
The authorities upon the subject of watercourses and the rights of navigators and riparian proprietors are abundant,, and ever increasing in number in many of the States and in Canada, and it would serve no good purpose to quote more than is sufficient to give weight to our proposition.
In the case of Gaston v. Mace, 33 W. Va., 14, navigable streams are divided into (1) tidal streams; (2) those non-tidal, but navigable for boats or lighters, and (3) floatable, to which last class are given the definition we have quoted, supra, and in relation thereto a quotation is used from Lancy v. Clifford, 54 Me., 487.
*558“A stream, which, in its natural condition, is capable of (being used for floating logs, lumber and rafts, is subject to the public use as a highway, though it be private property and ■not strictly navigable. This right of the public, however, must be exercised in a reasonable manner. * * * The various purposes for which such a highway is used by the public, whether for transporting merchandise, rafting, driving or booming logs, or securing them at the mill afterwards, if necessary, require so much space as temporarily to obstruct •■the wny, but if parties so conduct themselves in this business as to discommode others as little as is reasonably practicable, the law holds them harmless.” Speaking of the conflict of interests between the navigators and'the riparian owners, •“the common law * * * furnishes a solution of this difficulty by allowing the owner of the soil, over which a float-•able stream which is not technically navigable passes, to build a dam across it and erect a mill thereon, provided he furnishes a convenient and suitable sluice or passage-way for the public by or through his erection. In this way both these •■rights may be exercised without substantial prejudice or inconvenience.”
I might well adopt this language in regard to the rights of Jioaters upon streams of the character indicated, w'here the bed of the stream has not been granted, and where the riparian owners have the right to use the waters to the thread of the stream.
I may take a passage from section 110 of Gould on Waters: “The rights of the public are ,not superior to private rights in streams which are merely floatable, to the same extent as in rivers which are capable of more extended navigation. * * But the right of floatage is not exclusive of the use of the water for machinery, and the rights of the public and those of the riparian owners are both to be enjoyed with a •proper regard to the existence and preservation of the other.
“ If dams are so constructed as to limit the public passage *559to a small portion of the stream, and sufficient provision is made for the passage of logs, the public cannot complain, while those who exercise the right of floatage are liable to the riparian owners for such exercise of the common right as causes them an injury.”
We conclude that the plaintiff was at any rate entitled to have the jury pass upon the question whether he was damaged by the negligent manner in which the logs were driven down the stream, under proper instructions.
In the case of Lewis v. Keeling, 1 Jones, 299, where, in Chowan river, a navigable stream, the steamer ran over the seine and injured it, the right of navigation was undoubtedly paramount to that of fishing; it was clearly intimated that while the steamer had the right to run over the seine in the bona fide prosecution of its business, it could not do so wantonly or unnecessarily. The brief the late Judge Barnes in this case has abundant authority to show that if the defendant negligently destroyed plaintiff’s property, even if it were a nuisance, he is liable for its value. And this might apply to our present case, even though it were clear that plaintiff’s erection over-passed the thread of the stream.
If the intimation of his Honor and consequent nonsuit of the plaintiff would have the effect to declare that the river in question is what is now called a floatable stream, the principle involved might affect many rivers in North Carolina with varied riparian rights and valuable interests. Great care should be exercised in the settlement of the law in North Carolina between important and sometimes conflicting interests. The decisions in other States on kindred subjects, in many cases, depend upon local usage or special legislation. We must look, in a great measure, to our own statutes and to the common law as interpreted by our own Court.
I desire to make no intimation with regard to streams where the bed has been granted by the State. As far as the evidence in this case shows, the lands of the plaintiff and *560of those through whom he derives title out of the State, are bounded by the i’iver, giving them, as I have said, the right to the use of the stream to its thread.
Without pursuing our inquiries further, it seems to me that his Honor ought to have permitted the case to go to the jury with instructions as to the law bearing upon suitable issues.
Clark, J., dissenting.