Haines v. Hall

Lord, J.,

concurring. — That the stream in question was not navigable within the meaning of the authorities for the transportation of timber or logs, and is not subjected to the public rights of user for that purpose, seems to me to be established by the testimony beyond controversy. Even the testimony for the defendant is pregnant with proof *186that the stream cannot be used for this purpose without constant and continuing trespass when used for floating logs, and that in its natural state it is not of sufficient depth and width to float the products of the forest tq market.

It is hardly possible to read the testimony, in which it appears numerous men were placed along the stream tq aid and push the logs along its channel, of the jams and standing of the logs, in consequence of its want of depth and width for such floatage, of the destruction of its banks in several places, and the overflow on the adjacent lands of the plaintiff incident to such use, and the injury necessarily resulting therefrom, without the conviction that the stream has not navigable capacity and is not susceptible of beneficial use to the public for that purpose.

We do not mean to say by this that to be navigable a stream must have a sufficient volume of water to be at all times and during all seasons capable of being used for the purpose of valuable floatage, and as a channel of trade and commerce. It is enough if it has floatable capacity at certain periods, recurring with regularity and continuing a sufficient length of time to make it useful as a highway for floating logs. Such has been the holding of this court. (Folger v. Robinson, 3 Or. 457; Shaw v. Oregon Iron Co., 10 Or. 381, 382.) But a stream to be navigable in this sense must be capable of such floatage as is of practical utility and benefit to the public, as a highway for trade, or, as has been said, “ to float the products of the mines, the forests, or the tillage of the country through which it flows, to market.”

Perhaps as good a test of the navigability of such streams is found in the case of Rhodes v. Otis, 33 Ala. 578. It is there said: “In determining the character of a stream, inquiry should be made as to the following points: Whether it is fitted to valuable floatage; whether the pub-

*187lie or only a few individuals are interested in transportation; whether any great public interests are involved in the use of it for transportation; whether the periods of its capacity for floatage are sufficiently long to make it susceptible of use beneficially to the public; whether it has been previously used by the people generally, and how long it has been so used; whether it was meandered by the government surveyors or included in the surveys; whether, if declared public, it will probably in future be of public use for carriage.” (Pelies v. Railroad Co., 56 Ala. 528.) Tested by this rule, there is scarcely a particular in which the stream in question would not be condemned as non-navigable for the transportation of logs. It is not only not adapted to a public use, but the public have made no attempt to use it for any purpose. It is, therefore, perfectly evident that the defendant has no right to float logs down this stream through the lands of the plaintiff. While this, however, is not much contested, it is strenuously urged that the question of navigability' is a question of fact for a jury, and the case, therefore, does not authorize the interference of equity. But this is not so.

The case of Meyer v. Phillips, 97 N. Y. 490, is so on all fours with the case in hand, and so direct an adjudication and authority for such equitable interference, that we quote it in extenso.

“But it is claimed,” says Earl, J., “that the facts of this case do not authorize equitable interference or sustain the jurisdiction of an equity court. The defendants threatened to float a larger number of logs over the plaintiff’s land, 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 sub*188stance 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 a right by prescription. They not only claimed a right for themselves, but foFthe 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 right, and prevent the threatened injury, is abundantly settled by authority. (Angell on Watercourses, sec. 449; 2 Story’s Eq. Jur., sec. 927; 3 Pomeroy’s Eq. Jur., sec. 1351; Holsmar v. Boiling Spring Co., 14 N. J. Eq. 335; Campbell v. Seaman, 63 N. Y. 568; Johnson v. City of Rochester, 13 Hun, 285; Swinton Water Works Co. v. Wilts and Berks Canal Co., L. R. 7 H. L. 697; L. R. 9 Ch. 451; Clowes v. Stafforshire Potteries, 8 L. R. 9 Ch. 125, 142.) 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 case in hand possesses all these features, with added aggravation. It is incontestable that the stream would not float these logs without extraneous aid, and in rendering this the banks had to be used, and were damaged, and in places destroyed, and the plaintiff’s meadow overflowed and rendered useless.

The facts show that in the attempt to.make the logs float down the stream, thirty or forty men were employed with cant-hooks and other appliances, for the period of twenty or thirty days during the season of highest water, to aid in the transportation of these logs; that in this attempt to navigate the stream for this purpose no less than thirty separate and distinct trespasses were committed, many of them irreparable in their nature, and *189reaching to the destruction of the estate in the character in which it was enjoyed.

The defendant not only asserts his right to use the stream for such use, but he claims a like right for the public. More: he threatens to commit and claims the right to repeat, not a single trespass, but the innumerable trespasses which the facts show must follow its exercise; that, in such case, the plaintiff is entitled to an injunction to prevent irreparable injury, and to avoid a multiplicity of suits, is established by the authorities beyond controversy.

The motion for a rehearing is denied.