dissenting. — The object of this suit is to restrain the defendant from floating saw-logs down Anthony Creek, which creek flows through the plaintiff’s lands, in Union County, Oregon; also to restrain .the defendant from maintaining a certain dam across said creek above the plaintiff’s premises, and for damages which .it is alleged the plaintiff has received by reason of various trespasses upon his lands by defendant, committed in running said logs.
The plaintiff, by his amended complaint, alleges, among other things, that a small, shallow stream, knowm as Anthony Creek, flows in a southeasterly direction through plaintiff’s land, diagonal^ dividing it in two equal parts, and fertilizes and irrigates said land, and is the boundary line between Union and Baker counties, and that the plaintiff owns both banks and the'bed of said Anthony Creek, where it passes through his land, for a distance of about one half a mile; that the defendant, during the spring and summer of 1886, and the winter of 1886 and 1887, cast and deposited in Anthony Creek, above plaintiff’s said lands, saw-logs cut from timber above plaintiff’s said lands, at various places, and is proposing and threatening to continue to do so for the purpose of attempting to transport or float said logs by means of said creek from said places through the plaintiff’s said lands to a point *176on North Powder River, below the plaintiff’s land, and below the mouth of Anthony Creek, a distance of five miles or more, where the defendants are preparing to erect a saw-mill as soon as the spring freshet comes in the spring of 1887; that said logs amount to more than four million feet, and are piled and banked into and along the banks of said creek at various places above plaintiff’s said land; that during the spring of 1886 the defendant cast and deposited in said creek a large quantity of saw-logs, and in the month of June, 1886, attempted to drive and float about one million feet of said logs down said creek and across the said lands of the plaintiff, by means of which and whereby the defendant injured, displaced, and wasted the plaintiff’s said lands, and tore, cut, and carried away the substance of the soil thereof, and wrongfully committed -waste thereon, and upon the plaintiff’s said lands; that about the first of June, 1886, the defendant and his employees, in preparing and attempting to float said logs, broke the plaintiff’s inclosure upon said lands, and wrongfully entered the plaintiff’s said lands, and broke and carried away his fences at two places where the same crosses said creek upon the plaintiff’s said lands, to his damage in the sum of twenty-five dollars; and by reason of the same being broken and kept open by the defendant, plaintiff was compelled to and did herd the stock off of his crops for one month, to his damage in the sum of twenty-five dollars; that about June 11, 1886, the defendant, in preparing to float said logs in said creek through the plaintiff’s said lands, broke up, carried away, and destroyed plaintiff’s bridges across said stream, to his damage in the sum of five dollars; that during the month, of June, 1886, defendant in so attempting to float said- logs in said creek caused the same to form a jam or dam across said creek, and dammed the same at a point above the plaintiff’s lands, and at the *177head of the plaintiff’s irrigation, ditch, whereby the water was diverted from said ditch and the same was injured, and the plaintiff was thereby and by reason thereof deprived of the use of the water of said creek upon said lands of the plaintiff for the purpose of ii’rigation, to his great damage in the sum of seventy-five dollars; that in so attempting to float said logs in the month of June, 1886, the defendant floated, rolled, and pushed upon the plaintiff’s said land in said creek a large quantity of logs, to wit, about 250, and that said logs so remained and still remain on the plaintiff’s said land, and on the banks of and in said creek, to plaintiff’s damage in the sum of one hundred dollars; and by reason of said logs being in said creek since June, 1886, plaintiff has been prevented from getting to said creek with his stock, except with a great deal of trouble and inconvenience, to plaintiff’s damage in the sum of five dollars; that by reason of said logs being in said creek on plaintiff’s said land, the same has caused, and continues to and will cause, the water of said creek Jo wash away the banks thereof, and change the channel thereof, and has during all of said times obstructed the flow of the waters of said creek across said lands-of plaintiff, to his damage in the sum of ten dollars; that in preparing and attempting to float said logs in said creek in June, 1886, the defendant cut down and destroyed eight of plaintiff’s growing trees on said land, to his damage in the sum of twenty dollars.
All of the foregoing wrongs were suffered by the plaintiff, as he alleges, prior to the commencement of this suit. The part of the amended complaint relating to threatened injuries is as follows: That said creek is shallow, and not navigable for boats or canoes, and has low banks, and in its natural state is not navigable for railroad ties or saw-logs except in the spring freshet or rainy season of the year, and is unfit to be used by the public or otherwise as a *178means of transporting or floating logs to the defendant’s .proposed saw-mill on North Powder River or elsewhere through the plaintiff’s said lands; that the defendants are preparing to and will float or attempt to float a large quantity of saw-logs down said Anthony Creek from a point on the banks thereof above the lands of the plaintiff, to wit, about four million feet of said logs, down said stream through said lands, to North Powder River, and threatens to continue to float or attempt °to float said logs down said stream through plaintiff’s said lands for years to come; that by reason of the nature of said stream, low banks, and small volume of water and narrow channels, it is not possible to successfully float logs down it through the plaintiff’s lands, to be beneficial to commerce or to the defendant, and any attempt to do so will result in irreparable injury to the plaintiff’s land; that said attempt to so use said stream will result in endless litigation and a multitude of actions without a complete remedy to the plaintiff, unless the court inhibit and restrain the defendant from so floating logs in said stream; that the floating of logs in said Anthony Creek, the maintaining and manipulating of said dams by the defendant, as threatened by him, will result in great and permanent injury to the plaintiff’s said lands, and will cut away the banks of said stream, change the channel thereof, flood plaintiff’s lands with water, deposit thereon logs, gravel, and debris, wash out and cut away the meadow and soil from plaintiff’s said land, interrupt the plaintiff in the tillage of said •land, and the caring for his crops and stock thereon, cause the removal of plaintiff’s fences, and expose his lands and crops to the trespasses of stock, and that such •threatened trespasses, injuries, and damages by the defendant will necessarily result in irreparable injury to the plaintiff’s said lands, and great damage to the plaintiff, which cannot be compensated in damages, and, unless *179restrained by this court, will result in the financial ruin of the plaintiff.
Before the defendant answered the amended complaint, the plaintiff, by leave of court, filed a supplementary complaint, in which it is alleged that the particular damages which plaintiff feared have been sustained by him by reason of the attempt by the defendant to run said logs down said stream, the particular items of which are specified, aggregating about $955. The answer to the amended as well as the supplemental complaint denied almost all of the material allegations therein except the cutting and putting in of the logs, and the defendant’s intent to run the same down said stream to North Powder River.
By way of separate defense it is alleged that said Anthony Creek mentioned in said complaint is a navigable stream for saw-logs, railroad ties, and other timber, and can be successfully used in transporting and floating logs, ties, and other timber down the same through the plaintiff’s said land; and other parts of said creek can be thus used beneficially to commerce during the annual freshets in each year, in ordinary seasons.
The evidence was taken upon an order of reference for that purpose, and the cause tried by the court, and a final decree entered in favor of the plaintiff, enjoining the defendant, his agents and servants, from floating logs in said stream across the plaintiff’s land, or attempting to do so, and for three hundred dollars damages, and for costs and disbursements, from which decree this appeal is taken.
1. It appears from the evidence that Anthony Creek is a small, rapid, and somewhat tortuous mountain stream, taking its rise only a few miles above the plaintiff’s lands and empties its waters into North Powder River, a few miles below. Where it flows through plaintiff’s lands, it varies in w’idth from ten to thirty feet; its banks are low and alluvial, and lined with a dense growth of willows, *180except at four different places, one 84 feet, one 135 feet, another 100 feet, and still another place 110 feet. The depth of the water is from two to four and one half feet deep. The stream is mainly fed by mountain springs, but during the months of June and July of each year it is swollen by the melting snow in the mountains, at wdiich times it is capable of floating saw-logs to a limited extent, from a point above plaintiff’s lands, to its mouth. The defendant floated sixteen hundred thousand feet of logs down said stream during the year 1S86. But I think it evident the defendant, in his anxiety to get logs to his mill, forced the stream beyond its capacity. In other words, he put a greater quantity of logs in said stream than could be conveniently floated, and thus caused them to jam so that their progress was stopped until relieved by gangs of men using cant-hooks and other appliances. To accomplish this the men engaged in driving traveled up and down the banks of the stream on the plaintiff’s land, doing no greater injury to the premises than walking over the same.
By the common law, all streams are navigable where the tide ebbs and flows, while all others were held not to be navigable; but this distinction has not generally prevailed in this country. The true test seems to be whether or not the particular stream is navigable in fact; that is, capable of being used for transporting to market the products which grow along its banks. Nor is it necessary that it should be at all times capable of being so used. If a stream during seasons of high water continuing for a sufficient length of time to enable any person to float saw-logs to market, or a place where they may be manufactured into lumber, such stream is subject to the public use as a passage-way, and to the extent that it is useful it must be deemed navigable. (Weise v. Smith, 3 Or. 446; Felger v. Robinson, 3 Or. 455.)
*181In the latter case it was said by this court: “We hold the law to be, that any stream in this state is navigable on W'hose waters logs or timbers can be floated to market, and that they are public highways for that purpose, and that it is not necessary that they be navigable the whole year to constitute them such. If at high Water they can be used for floating timber, then they are navigable; and the question of their navigability is a question of fact, to be determined, as any other question of fact, by a jury. Any stream in which logs will go by force of the water is navigable.” And the saíne doctrine is asserted by this court in Shaw v. Oswego Iron Co., 10 Or. 371.
Numerous other authorities 'are to the same effect. (Brown v. Chadbourne, 31 Me. 9; Olson v. Merrill, 42 Wis. 203; Morgan v. King, 35 N. Y. 454; Hickok v. Hine, 23 Ohio, 523; Whisler v. Wilkinson, 22 Wis. 572; Sellers v. Union Lumbering Co., 39 Wis. 525; Holden v. Robinson Mfg. Co., 65 Me. 215; Gerrish v. Brown, 51 Me. 256; Morgan v. King, 30 Barb. 1.) I think these authorities abundantly show that actual capacity and utility of a stream for the purpose of floating logs or other commodities to market is the test of the public right of passage.
Nor is this right of passage lost or impaired because in its exercise trespasses may have been committed on the premises of the riparian proprietor. In a proper action the wrong-doer is responsible to such riparian owner for all such damages. The public right is confined to the streams and measured by its extent, and does not extend to the shore, except under particular circumstances to land or to secure the floating property to the shore temporarily and in a reasonable manner, and so as not to obstruct others in the free use of the stream. Such right in the use of the stream does not include the right to occupy the shore for the purpose of aiding in driving logs or dislodging those which have become jammed.
*182The right to raft logs down the stream does not involve the right of booming them upon private property for safekeeping and storage any more than the right to travel a highway justifies the leaving of wagons standing indefinitely in front of private dwellings or stores. (Lorman v. Benson, 8 Mich. 18.) Perhaps the true rule.of law on this subject is stated by Ryan, C. J., in Olson v. Merrill, 42 Wis. 203. He said: “We of course recognize the position that the navigable character of a stream cannot depend upon trespass on the shore, and that one floating his property down a stream has no right without a license to use the banks of the stream to aid him. But it appears to us to be begging the question to assume that because it is convenient, and persons are accustomed so to use the banks, therefore the stream is not navigable without trespass upon them. We take it that a stream which is of sufficient capacity to float logs is of sufficient capacity to float some kind of boat or skiff in which the owner may follow his logs. And if there be some places where, in consequence of bars or other obstructions, neither logs nor boat will pass without human help, the boat may be aided down the stream as well as the logs, so that the logs may be floated through the streams without trespass upon the banks. This might probably be inconvenient, and even sometimes dangerous. But the stream is none the less navigable because persons using it are induced by convenience to prefer unlawful to lawful means in aid of the use. Indeed, we gather from cases which have come before us that the same practice prevails on some of the larger streams in this state. But the navigable character of a stream does not rest on the tortious practice, but on the capacity of the streams to be lawfully used. And we cannot hold that the right to use a public highway, by land or by water, is lost even by habitual trespass upon adjoining lands.”
*183So it, was said by the Supreme Court of Maine, in Hooper v. Hobson, 57 Me. 273: “The right of the public in a stream capable of being used for floating logs, or as a, passage-way for boats and barges of sufficient capacity to be useful in commerce or agriculture, is not thus to be extended over adjoining lands. The water makes and defines the highway. The facilities of transportation afforded by it are privileges which, like those of air and light, are too great to be suffered to become the subjects of private property. But the exercise, of the common privilege must not be made an occasion for encroachment upon that which is legitimately the exclusive property of another. The right which the public enjoy in a navigable or floatable stream is, in general, limited by its banks. The proper definition of the word ‘bank’ in this connection is, a steep acclivity on the side of a lake, river, or the sea. These banks are the boundaries within which the exercise of the common right must be confined. Except during the continuance of an overflow, or in the exercise of those privileges which are given and defined by statute, log-owners and river-drivers have no rights in a floatable stream beyond those boundaries. Important as their business undoubtedly has been and is, it must be conducted with due regard to the rights of others. Their liability to pay damages to the riparian proprietor for traveling upon the banks to propel their logs is expressly recognized in Brown v. Chadbourne, 31 Me. 9, relied upon by the defendant here.”
In Brown v. Chadbourne, 31 Me. 9, referred to in the above extract, the doctrine under consideration is thus stated: “If the plaintiff and others were in the habit of going upon the banks of Little River to drive their logs, it does not appear but that they might have confined themselves to its waters, though it might be more inconvenient for them so to have done. Their want of care in *184the úse of the river) Creating a necessity to commit trespasses to relieve their property, would not prevent it from being public) nor justify the defendant in obstructing it. They would, be responsible in damages for any trespasses committed.”
2. But without at this time deciding whether or not Anthony Creek is a floatable stream for saw-logs in which the public have &n easément for that purpose, it appears to me that this suit ought not to be sustained for other and different reasons from those already suggested. If this creek be not a floatable Stream in Which the public have an easement, all of the acts of the defendant on the stream where it funs through the plaintiff’s lands, ás well as those upon the land itself, were trespasses) for which he is liable in an action át law.
The ordinary rule in stich cases is, that equity will not interfere to enjoin a trespass. Something more is necessary before equity Will interfere,- such as preventing irreparable injury, avoiding a multiplicity of suits, and the like. Chancellor Kent says, in Livingston v. Livingston, 6 Johns. Ch. 497: “There must be something particular in the case so as to bring the injury under the head of quieting possession, or to make out á case of irreparable mischief, or where the value of the inheritance is put in jeopardy.”
Ordinary wrongs of torts’ are never prevented by injunction. The injuries they inflict are not irreparable, and in such case the party must be left to his remedy at law. (Cross v. Mayor of Norristown, 18 N. J. Eq. 315; Mulvany v. Kennedy, 26 Pa. St. 44; Gause v. Perkins, 3 Jones Eq. 177; Willard’s Equity, 382.)
It is not doubted that where the injury complained of reaches to the very Substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed, such injury may be prevented by injunction. *185But I think the proof fails to make a case within this principle. Conceding the stream to be private, the floating of the logs on it across plaintiff’s land would not constitute such injury, nor would the use of the banks to assist in driving them. I cannot find from the evidence that the logs caused any debris deposited on plaintiff’s land, or that the banks of the stream were broken or washed by reason of the logs passing down the same.
3. Nor will an injunction be allowed unless the right set up and sought to be protected is free from all reasonable doubt. (2 High on Injunctions, sec. 698.) Nor when the defendant is in possession until the title is established at law, unless a strong case of irreparable mischief is made out, nor where the plaintiff’s title is in dispute and has not been established at law. (2 High on Injunctions, sec. 698.) By this suit we are called upon to determine the title to this stream, and to assess damages growing out of its alleged wrongful use by the defendant. His right to use it depends upon the facts which ought to be tried by a jury, and the estimate of damages, if any, made by them. They are questions peculiarly within their province, and I think ought not to be withdrawn from their consideration. To allow a case like this to be finally determined in equity would be to make a precedent which, if followed, would invade the right of trial by a jury in a large class of cases where the constitution declares the same shall remain inviolate.
[Filed March 14, 1889.]