Decided February 16, 1909.
On Petition for Rehearing.
[99 Pac. 800.]
Mr. Chief Justice Beandelivered the opinion.
The principal object of this suit as disclosed by the complaint, was to obtain a decree restraining the defendant from interfering, by the operation of his splash dams, with plaintiffs’ use of the waters, in the North Yamhill River, for power purposes. The questions whether the stream is navigable or floatable, whether plaintiffs’ dam is an unlawful obstruction therein, and the respective rights of the public and riparian owners were issues tendered by the defendant in his answer, and are incidental to the main purpose of the suit. The court below held that the stream, from the splash dams of defendant to its mouth, is a navigable and floatable stream, and a public highway, and that the right of plaintiffs to maintain a dam therein for power purposes is inferior and subject to the right of navigation; that plaintiffs may maintain and operate such a dam so long as it does not interfere with the use of the stream as a public highway, but that the defendant has a right to operate his splash dams in the manner complained of, subject only to answer in damages to any riparian owner injured thereby, thus practically denying the relief sought. From this decree the plaintiffs appeal, and on *228the hearing here it was decreed that defendant should be enjoined and restrained from so operating his dams as to interfere with the- use of the water by plaintiffs for power purposes. Plaintiffs, therefore, prevailed in this court on the main issues in the case, and are entitled to their costs.
It is suggested, however, that in order to put an end to the controversy between the parties, the court should determine in this suit the extent to which defendant may use his splash dams, to facilitate the floating of logs in the stream, without being liable to riparian proprietors therefor, and whether plaintiffs’ dam is an unlawful obstruction to navigation, and, if so, the extent to which it should be lowered or otherwise modified, so as not to interfere with the floating of logs over it. The law on the first point is, we think, sufficiently indicated in Kamm v. Normand, 50 Or. 9 (91 Pac. 448: 11 L. R. A. (N. S.) 290, and the opinion heretofore filed in this case. The application of this rule can be made only to concrete cases, as they arise. We hold that the use of the splash dams by defendant, as disclosed by the testimony, has been such as, not only to retard the natural flow of the water, thus interfering materially with the continuous operation of plaintiffs’ mills, but also to their injury by depositing dirt and debris in their mill pond and races, by the sudden discharge of the accumulated water, and plaintiffs are therefore entitled to an injunction against such use of the dams, but in the nature of things it would be impossible to state in a decree what quantity of water defendant may accumulate above his dams, and suddenly discharge, without injury to plaintiffs. All the court can decree is that under the case as made the manner in which defendant has heretofore used the dams is injurious to plaintiffs.
Upon the other point it is sufficient to say, as stated in the former opinion, that on the record before us we are inclined to think the power dam of 'plaintiffs, in its *229present condition, is an unreasonable interference with navigation, and consequently it should be lowered or an apron or sluiceway provided for the passage of logs, or the dam modified in some other way, so that it will not materially interfere with the passage of logs over it. But we cannot safely determine, under the evidence of this case, how much it should be lowered, or what- means should be provided for the purpose indicated. The evidence and pleadings were directed mainly to the question whether the dam is an unlawful obstruction to -navigation and as such should be removed, and not to the manner in which it can be modified or changed so as not to interfere with the floating of logs. It is probable that if we should undertake this question on the record before us, we should do an injury to one or the other of the parties. In order, however, that the controversy may be finally and speedily determined at the least expense to the parties, it is thought proper to remand the cause to the court below, with directions to ascertain and determine the extent, if any, to which the dam interferes with the navigation of the stream, and what change or modification, if any, should be made therein.
Modified: Remanded with Instructions.