Barboro v. Boyle

• Decision Date: 21 June 1915
• Docket Number: 62
• Citation: 178 S.W. 378,119 Ark. 377
• Parties: BARBORO v. BOYLE
• Court: Arkansas Supreme Court

178 S.W. 378

119 Ark. 377

BARBORO v. BOYLE

No. 62

Supreme Court of Arkansas

June 21, 1915

Appeal from Crittenden Chancery Court; Charles D. Frierson Chancellor; affirmed.

Decree affirmed.

Brown & Anderson, for appellants.

1. Horse Shoe Lake is an unnavigable body of water, and plaintiffs' title extended to the middle of the lake, as abutting owners. 82 Ark. 367; 88 Id. 37; 92 Id. 39; 104 Id. 154; 36 Barb. 102; 95 N.C 331; 59 Am. Rep. 242; 39 Ark. 409. Navigability is a question of fact; if a stream or lake is navigable, then abutting owners of land only take title to the ordinary high water mark, but if unnavigable, then to the middle of the stream or lake. 67 F. 287; 148 Id. 781. The action of Government surveyors in meandering a body of water is to be considered as evidence, but is not conclusive. 175 U.S. 300; 52 Minn. 181; 18 L. R. A. 670; 127 Tenn. 601-661. The criterion is whether or not a stream is useful to the population as a means of transporting the products of field forest or merchandise.

2. Injunction will lie to prevent trespasses where the relief is necessary to prevent multiplicity of suits, or irreparable injury. 33 Ark. 633; 67 Id. 413; 93 Id. 93. The right is certain and clear. 73 Ark. 236; 6 Can. Sp. Ct 52; 69 Mich. 488; 36 Oh. St. 423; 33 L. R. A. 569; 148 F. 791; 49 N.C. 332; 53 A. 612; 43 Ill. 447; 8 L. R. A. 578; 19 A. 351; 22 Cyc. 746.

3. The submergence of the lands is entirely due to the levee, and such artificial flooding does not have the effect of ousting plaintiffs from either the possession or title thereto. 97 C. C. A. 214; 78 N.E. 42; 6 L. R. A. (N. S.) 136; 59 Ill.App. 51; 38 L. R. A. 855; 73 Ark. 236. The high banks in connection with the fences and enclosures constituted enclosed lands. 89 S.W. 1004; 76 Ark. 529.

A. B. Shafer and E. L. Westbrook, for appellees; McGehee, Levingston & Farabough, of counsel.

1. Horse Shoe Lake is navigable in the American sense. The question of navigability is one of fact. 39 Ark. 408. His finding will not be disturbed. 67 Ark. 200; 101 Id. 503; Ib. 522; 97 Id. 568; 148 F. 781. The test is, can the stream be, or is it used for the purpose of commerce for boats, rafts, vessels or logs, etc.? 90 F. 680; 59 Am. Dec. 209; 50 Id. 641; 91 Id. 58; 73 Id. 439; 84 P. 395; 38 Am. St. 551; 11 Am. Rep. 380; 39 Ark. 409.

2. Where the level of a navigable lake is maintained by artificial means, the rights of the public are correspondingly extended. Should appellants attempt to inclose such submerged lands, with a fence, any citizen could enjoin them. 103 Wisc. 271; 70 N.W. 1115; 78 Id. 185; 56 Wisc. 73. Submerged lands belong to the State in trust for the public use. 93 Wisc. 534; 33 L. R. A. 645; 100 Wisc. 86; 54 L. R. A. 790; 52 N.E. 1052; 101 Wisc. 479; 74 N.W. 185. None of these lakes are private ponds. Appellants have but a qualified right to hunt and fish on the lands or waters. 73 Ark. 236; Kirby's Digest, § 3598; 93 Ark. 92. The injunction was properly denied. 4 Eq. Jur. (Pomeroy), § 1338.

OPINION

HART, J.

A. S Barboro and others, as trustees for the Five Lakes Outing Club, a voluntary, unincorporated association, instituted this action in the chancery court against Thos. R. Boyle and others for the purpose of restraining them from hunting and fishing upon lands alleged to belong to plaintiffs.

The plaintiffs held legal title to certain lands in the peninsula formed by Horse Shoe Lake in Crittenden County, Arkansas. Horse Shoe Lake, as its name implies, is a horse shoe shaped body of water, and was likely at one time a part of the bed of the Mississippi River. It is seven miles long and has an average depth of eighteen feet. It was connected with the Mississippi River by Buck Bayou, and in 1905, the St. Francis Levee District constructed its levee across Buck Bayou, and this had the effect of damming up the water in Horse Shoe Lake about five feet above its ordinary level.

In 1910, the plaintiffs installed a siphon to pump the water on the outside of the levee in such quantities as to reduce the bed of the lake to its ordinary level. After the siphon had been installed a few years, it was allowed to get out of repair and has not been used since.

It is the contention of counsel for the plaintiffs that Horse Shoe Lake is a meandered, nonnavigable body of water, and evidence was introduced by them tending to establish this fact.

On the other hand, it is the contention of the defendants that Horse Shoe Lake is a navigable body of water, and evidence was introduced by them to establish this contention.

The evidence on the question of the navigability of the lake will be considered later.

The chancellor held that Horse Shoe Lake is a navigable stream, but granted to the plaintiffs an injunction restraining the defendants from hunting or fishing within certain limits which are stated in the decree, and which will be more particularly referred to later on.

The plaintiffs have appealed.

The riparian owner upon a navigable stream, deriving title from the United States, takes only to high water mark, the title to the bed of the stream being in the State. St. Louis, I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931.

The riparian owner upon a nonnavigable stream is entitled to the center of it, ratably with the other riparian proprietors, the extent of his interest depending upon his frontage upon the lake. Rhodes v. Cissell, 82 Ark. 367, 101 S.W. 758; Little v. Williams, 88 Ark. 37, 113 S.W. 340; Glasscock v. National Box Co., 104 Ark. 154, 148 S.W. 248.

The question of the navigability of Horse Shoe Lake was one of fact, and as tending to show that it was navigable, defendants introduced witnesses whose evidence tended to establish the following facts:

Horse Shoe Lake is situated in the southeast part of Crittenden County, and was probably once a part of the bed of the Mississippi River; the average width of the body of water is about a half mile, and the average depth about eighteen feet; beginning at the southeast end of the lake, there is about ten feet of water which runs out to shallow water about eighteen inches deep; further north, the lake widens out and becomes about two thousand feet wide, and the water from twenty-five to thirty feet deep; the lake is about seven miles long, and is deep enough and wide enough to float the largest steamers that ply the Mississippi River; the outside rim of the lake is a bluff bank and boats could be landed almost anywhere along it; the inside bank of the lake is sloping; there are a number of skiffs and gasoline boats on the lake used by the riparian owners; the lake is free from snags, and there is nothing to interfere with the navigation of large steamboats; the water is clear and the lake is full of all kinds of game fish; in the fall, ducks come there in vast numbers, and remain in that vicinity during the winter and at irregular intervals the ripairan owners have used the lake for the purpose of carrying by boat, freight from one point on the lake to another.

The plaintiffs own a large body of land within the peninsula and it abuts the inner banks of the lake. The defendants also own land which abuts upon the lake.

The testimony on the part of plaintiffs tends to show that Horse Shoe Lake has never been used regularly for the purpose of commercial navigation, and that timber and products of the soil have been transported on the body of the lake only at irregular intervals, and never for any continuous series of years; that the soil adjacent to the lake is somewhat marshy, and is not adapted to the building of roads; and that it would be difficult to build roads leading from the lake to any populous center.

In the case of Donnelly v. United States, 228 U.S. 243, 30 A. & E. Ann. Cas. 710, 57 L.Ed. 820, 33 S.Ct. 449, the court held that what should be deemed navigable water within the meaning of the local rules of property in the bed of a stream, is for the determination of the several States.

In the case of the Little Rock, Mississippi River & Texas Rd. Co. v. Brooks et al., 39 Ark. 403, the court said:

"By the American doctrine, tide water, as a criterion of navigable character, has been discarded. Nor is it any objection to the public easement for navigation, that riparian proprietors of lands, along fresh waters, own to the thread of the stream. Nor is it necessary that the stream should be capable of floating boats or rafts the whole, or even the greater part of the year. Upon the other hand, it is not sufficient to impress navigable character, that there may be extraordinary times of transient freshets, when boats might be floated out. For, if this were so, almost all insignificant streams would be navigable. The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, although the annual time may not be very long. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort, and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times can not be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is this, that usefulness for purposes of transportation, for rafts, boats, or barges, gives navigable...