(dissenting) : Dissenting from the judgment of the Court, I think it due alike to the Court and to myself that I should state some of the reasons I have for so doing.
The petition to rehear in my opinion is in violation of the rules of this, Court. It does not only undertake to point out the error of the Court in its opinion as reported in 115 N. C., 590, but it enters into an extensive argument to sustain the petition. This is not allowable, as held by the Court in White v. Jones, 92 N. C., 388, where it is held that such arguments should not be made in the petition but on the argument in Court. As I understand the rule, interpreted by the Court, “No case should be reversed upon a petition to rehear unless it was decided hastily, and some material point was overlooked, or some direct authority was not called to the attention of the Court.” Watson v. Dodd, 72 N. C., 240; Hicks v. Skinner, 71 N. C., 539; Haywood v. Daves, 81 N. C., 8; Devereux v. Devereux, Ibid, 12; Smith v. Lyon, 82 N. C., 2; Lockhart v. Bell, 90 N. C., 499; University v. Harrison, 93 N. C., 84; Dupree v. Ins. Co., Ibid, 237. “Where the grounds of error assigned in a petition to rehear are substantially the same as those argued and passed upon in the former hearing, the Court *746will not disturb its judgment.” Lewis v. Rountree, 81, N. C., 20. "The weightiest considerations induce the Court to adhere to its decisions iinless manifest error appears, especially when the decision was made by a full Court and with unanimity, and after full argument by counsel.” Lewis v. Rountree, supra. “The Court reiterates that it will rehear a case only for weighty considerations and when the alleged error clearly appears.” Emry v. Railroad, 105 N. C., 45.
The matters of fact complained of by the petitioner are “That it seems that the Court overlooked the findings of Judgé Allen that petitioner’s mill had been established in .1890” and that Judge Allen found that both the rivers, at the “points” where the bridges are, were floatable streams. We do not admit these allegations. As we find that Justice AvsRy in a concurring opinion starts out by saying: “If it be true as appears from the testimony offered, and was found by the Judge below, that neither the Catawba River nor Johns River affords sufficient water to float logs over the shoals that abound in the beds of both, except when they rise suddenly 8 or 10 times every year, and continue at a sufficient height to carry logs off for a period of from 24 to 48 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.” Then it would seem that not only the findings of Judge Allen were fully considered by the Court, but the evidence in the case as well. But suppose the Court did not take into its consideration the fact that petitioner’s mill was established in 1890, can it be contended that the establishment of petitioner’s mill changed the character of the streams and made two rivers navigable that were not so before? I cannot subscribe to any such doctrine. And suppose these rivers are wide enough and deep enough at the *747“points” where the plaintiff’s bridges are, to float a log but for every quarter of a mile above and below in Johns Eiver, and every half mile above and below in the Catawba Eiver, there are shoals and rocks, as is found by Judge Allen, so shallow and rough that a log will not float over them, except when the water is up — from 8 to 10 times a year. What difference could this make in determining whether these rivers were navigable or not? What good could it do the petitioner to float his logs under the bridge if he could not get them down the river ? So it is perfectly apparent to me that there is nothing in these assignments, if it should be true that they were not considered by the Court. And this I do not admit.
Then the only remaining question to be considered is the question of law argued, rather than stated, in the petition, that the Court erred in construing the word “usually” in Judge Allen’s finding. The petition then shows that this part of the Judge’s findings was not overlooked by the Court. And that the petition should not be allowed, and the opinion rendered at the last Term of the Court overruled on this ground, see Dupree v. Ins. Co., and other cases cited, supra.
This is a rehearing. The facts are just now what they were at the last Term of the Court. Not a word has been added and not a word taken away. It is admitted in the petition that they were considered and the opinion of the Court shows they were, as one of the opinions filed says the facts found by the Judge and shown by the evidence established the fact that this river is not even a floatable rimer. It is not shown that the case was not well argued at the last Term, or that it was hastily determined. Indeed the case as published forbids any such conclusion, as there is not only a leading opinion by Justice MaoEab, but a lengtlily concurring opinion by Justice Avebt. The opin*748ion at last Term was unanimous — no dissenting voice. It is shown there were no mistakes of fact at that Term that could possibly affect the opinion of the Court. So the question comes substantially to this; that this case is an appeal from the last Term of this Court to the present Term. And the result is that four Justices at this Term hold that the Judgment of five Justices at the last Term was erroneous.
I have thus-far been considering the case upon the rules and practice established, as I think, by a train of authorities., some of which I have cited, to show that this petition should not be allowed.
And as my opinion is not to be the law that governs the case, I will not enter into an elaborate discussion of the question as to whether this river is a navigable, a “floatable”, stream or not. But in my opinion the doctrine announced in the opinion of the Court reverses what has been considered the law in this State for more than a hundred years. I had supposed until recently that what was naturally a navigable water course was settled in this State. The idea has been, and this State has acted upon that idea from its organization until now, that it has no right to grant the beds of navigable water courses, but that it had the right to grant the beds of such as were not navigable. And acting upon this idea, the State has granted the soil under the water in most of the water courses in the Western part of the State — such as the Catawba Eiver, Johns River, Yadkin River, &c. State v. Glen, 7 Jones, 321. These rivers are not like they are in the Eastern part of the State. There, where a river is wide enough for navigation, it is deep enough. But the rivers in the Western part of the State, such as the Catawba, the Johns and the Yadkin, are broad, shallow, rapid, and full of shoals and rocks, and valuable principally for water power which abounds all *749through that section of the State. Many of the citizens who wish to erect mills and for the purpose of not being troubled about their dams, have entered or bought of others that had entered the beds of these streams, erected their dams thereon, attached thereto their mills and machinery. They are the owners of this property. 'But the effect of this opinion is to legislate them out of their property, their vested rights, without process or compensation. The idea that the Catawba and Johns Rivers are navigable water courses is one of recent origin. It has been held that the Yadkin was not — was, because it probably is now, under this decision. In State v. Glen, supra, which is reiterated by this Court through Chief Justice Merrimon in the case of State v. Narrows Island, 100 N. C., 482, it is held not to be navigable. And the Yadkin River is longer and much narrower a navigable water course than are the Catawba and Johns Rivers.
But under the definition laid down in this case, the question will be, what is not a navigable water course ? There are thousands of little streams in the West that will float a log ( and how many are to be floated to make it navigable, we are not told) when up. They, like the Catawba and Johns, rise when it rains, and can be counted on to rise with about as much certainty as either of these streams. Then, why are they not also navigable ? Where is it to end ? And where is the line to be drawn between what is and what is not a navigable stream ? Whose property will be safe against an interested lumber company or lumber speculator? Our rivers in the Western part of the State are not like the rivers in the North West, the source from which the Court draws its authority for declaring these streams navigable water courses. They are more like our eastern rivers. Their seasons are different from ours. They rise at regular periods, and continue so for the season, *750and I prefer to adhere to our own authorities and State policy rather than to these Northern authorities that reached us about the time such parties began to speculate in our timbers.
“Floatable water courses” is a term not known to our law, until within the last six or eight years, and, as I say, came about the time the lumber speculators camej who, as I understand and as seems to be urged in this case, have bought up large sections of woodland, and the Court must protect them.
With me, this has nothing to do with my judgment in this case. I cannot see how large bodies of timbered land, as urged in the opinion of the Court, can make a river navigable which was not navigable before. It may be a convenience to those having such timber to have a navigable water course. But how the fact of having timber can create the navigable condition of the water course, I cannot see. I cannot help looking at this case as a contest between the parties for legal i-ights and not one of policy. If these rivers are navigable water courses, the plaintiffs are trespassers and are guilty of creating and maintaining a public nuisance, though they are only doing what had been conceded to their ancestors and predecessors for a hundred years. But if the North Carolina idea should be sustained, that is, if these streams are not navigable water courses, then the petitioners in destroying plaintiff’s bridges are trespassers. If the plaintiffs are trespassers, every mill owner and fishery owner, who thought he was owner of the soil upon which his dam is erected, is guilty of creating and maintaining a public nuisance.
The Court says the legislature could make provision for slopes, or in some other way protect such persons. If there is to be legislation, I think it ought to be by the legislature in declaring and providing for making that a public *751highway which, nature has failed to make so, in which there would be provision made to compensate the property owners for their property taken for the public use — as in cases of railroads, canals and other public improvements. That is within the province of the legislature and not within that of the Courts.