(concurring): If it be true, as appeared from the testimony offered, and as was found by the Judge below, that neither the Catawba river nor Johns river afford sufficient water to float logs over the shoals that abound in the beds of both, except when they rise suddenly eight or ten times during every year, and continue at a sufficient height *598to carry the logs off for a period of from twenty-four to forty-eight hours, then neither of the rivers would fall within the definition of a floatable highway heretofore given by this Court. Gwaltney v. Lumber Co., 111 N. C., 547. The record in the case operates as an estoppel only upon the parties to the action, or those who who are in privity with them and are bound by the decree. As between the defendant company and every riparian proprietor who owns any portion of the bed of the Catawba or Johns rivers, it is still an open question whether the company can use the water passing over his land as a public highway, just as in Gwaltney v. Lumber Company the decree precludes the defendant from claiming the right to use so much of the bed of the French Broad river between Asheville and the State line as is owned by Gwaltney, and no more. The perpetual injunction must, therefore, be so drawn as to restrain the defendants from using the portion of said streams where the county bridges are situated, for the purpose of floating, and not any part of either river above or below such bridges. In Gwaltney’s case it seemed to have been admitted that so much of the French Broad river as was above the city of Asheville was a floatable stream. Non constat in our case, but that for long distances above the county bridges both the Catawba and Johns rivers may not be hereafter found to be floatable. Nothing, therefore, is settled by this judgment except that the defendants are to be forever enjoined from endangering the stability of the bridges mentioned in the pleadings by attempting to float logs over or under them. Whether it was erroneous, in the first instance, to hold that the rights of the public to use a stream as a highway should be passed upon, whenever a riparian proprietor should see fit to sue one so using it for trespass, is, if our former adjudications are to remain undisturbed, no longer a debatable question. The consequence may be that one mill-owner may, by a succession of findings by Court or jury, establish his individual right to use a stream as a public highway, notwithstanding the objec*599tions of riparian owners or county authorities along the whole distance, while another less fortunate litigant may establish by verdicts the right of the public to an easement in all but a single tract extending over the bed of the stream, and be driven to buy the right-of-way over that, or discontinue his business. Right or wrong, the law has thus been written, and we must adhere to it or modify it. In assenting to the opinion of the Court, I wish to exclude the inference that the right of any particular riparian proprietor along the Catawba or Johns river to the use of the bed of the stream in his front has been adjudicated, or that the defendant company is precluded from the right to use the water flowing over his land for transporting his logs. It has been long settled that a State may, by statute, regulate the manner of floating logs, even on larger navigable streams passing through its territory, without interfering with interstate commerce. In the exercise of this authority, Legislatures have enacted laws requiring that logs should be floated only in rafts. In the face of conflicting verdicts between different parties, it may be difficult to determine whether the public have an easement in any stream for the purpose of transportation. The power must reside somewhere to settle the question whether a watercourse is a floatable stream. We have seen that the suits between individuals do not determine the 'rights of the public. If the Legislature should enact a law providing that a company should have the privilege of floating logs along so much of a certain river as was not already subject to an easement as a floatable stream, would the Courts sanction the awarding of damages to alternate proprietors along its banks, because one jury declared it not a highway and assessed damages in the manner provided by law, while another found it succeptible of use as a channel of commerce?
While conceding that the conclusions in this case are in harmony with the opinions in the Gwaltney cases, I deem it *600proper to point out the quicksands towards which, it seems to me, we are tending, if no way can be devised of ascertaining the rights of the public in floatable streams, except by endless litigation with unsatisfactory and conflicting judgments.