Gwaltney v. Scottish Carolina Timber & Land Co.

Shepherd, C. J.:

At the close of the testimony, his Honor intimated an opinion “ that, assuming the facts testified to-be true, the plaintiff was not entitled to recover,” and thereupon the plaintiff submitted to nonsuit and appealed. The question in issue was whether the French Broad river, from Asheville down to the plaintiff’s dam, was a floatable stream* There was testimony relating to the character of the river above Asheville, and also variant if not conflicting testimony as to its floatable capacity below that city. It would be difficult, therefore, to ascertain upon what facts his Honor based his ruling, unless we consider that he meantthat in no aspect of the testimony could the plaintiff maintain his action. This, of course, is the view which we must take, and it is our duty to base our judgment upon that testimony which is most, favorable to the plaintiff. We are not permitted to attempt a reconciliation of the testimony so as to make out a case for the defendant, but we should examine it with the opposite view of ascertaining whether there is any evidence which tends to sustain the plaintiff’s action. Gould on Pleading, ch. 9, sec. 65; Knight v. Railroad, decided at this term; Rond v. Wool, 107 N. C., 146.

Now the plaintiff’s dam, having been injured by the logs of the defendant, as stated by the witnesses, it was incumbent on the latter to show that the river was a floatable stream at the point where the injury was inflicted, and, if it has failed to do this, the plaintiff was entitled to recover. It is said that “it is not necessary, in order to establish the easement in a river, to show that it is suceptible of use continuously during the whole year for the purpose of floatage; but it is sufficient if it appear that business men may calculate that, with tolerable regularity as to the season, the water will rise to and remain at such a height as will enable them to make it profitable to use it as a highway for transporting logs to market or mills lower down.” Accepting this as a correct proposition of law, we are unable to see how the defendant has brought itself within its terms. It appears from the testimony of R. B. Justice that the water “ above Asheville is stiller and deeper,” and while it is stated by the witness Wilkerson that the river has been used for floating logs for fifteen or twenty years, he expressly testifies, upon further examination, that the statement was made in reference to the river above Asheville.

It is apparent from the tesdmony of the witness Wilkerson that all of his floating was done above Asheville, and it does not show that there has been any floating of logs below that place except what has been done by the defendant, and as to this he does not state how long.the defendant has been so using the river, or its condition when the floating was done. It is perfectly consistent, therefore, with the testimony of the witness Zachary, whosays that heand hisbrother, between the first of December, 1887, and the first of May, 1888, put logs in the river for the defendant, to go to its mill in Knoxville, Tenn. The witness Garret testifies that prior to the •organization of the defendant no logs were floated down the river from Asheville. So, taking all of the testimony, we have nothing which expressly shows that the river below Asheville was ever used by anyone for floating logs except ■during the six months mentioned by Zachary, and, for aught that appears, the floating may have been done in time of extraordinary freshets. Neither is there any definite testimony as to the character of the river below Asheville, as it is by no means certain whether Zachary’s testimony on this subject •does not refer to some point above that place, where he seems to have resided, and where he worked, as testified, for the defendant. When we add that it is stated by one ■of the witnesses that the river “ is not capable of floating logs unless there is a freshet,” it would seem that the defendant has failed to bring itself within the principles above mentioned. How can it be said, upon such testimony, that “ business men may calculate that, with tolerable regularity as to the season,” the water below Asheville can be profitably used for the floatage of logs? An ingenious advocate might possibly induce a jury to come to such a conclusion, but it is very certain that this Court has no right to do so; and especially is this true when we consider that it is our duty, not to determine whether there is any evidence to sustain the defence, but whether there is any possible mew of the testimony upon which the plaintiff may recover. As we have indicated, it must be assumed that the plaintiff has suffered injury at the hands of the defendant, and, the river not being a navigable stream, it is incumbent upon the defendant to establish that it is floatable within the legal meaning of that term. This being so, we cannot see how the case could have been taken from the jury. It is true that the plaintiff cannot contradict his own witnesses, but as we have seen that, taking all that they testify to be true, it is doubtful whether it makes out a case for the defendant, and it is very certain that, if we take the view most favorable.to the plaintiff, he is entitled to recover. There being some testimony tending to sustain the-action, we think that we should simply grant a new trial without attempting to pass upon the very important questions discussed by counsel.

Conceding that this is a floatable stream (and we think there is testimony tending to show that it is), another serious question to be determined is whether the right to float logs must not be exercised with reference'to the rights of riparian proprietors. To sustain the nonsuit in this case would, we fear, be construed as an indication that the right of floatage is paramount to all other interests, and we are not prepared to assent to such a proposition. However this may be, we think the facts should either be ascertained, or that there should be instructions clearly presenting the questions to be determined. Until this is done, we should refuse to decide questions involving such grave consequences to a large number of citizens owning property on the said river.

Error.

Burwell, J.: I concur in the opinion of the Chief Justice.