Bissel v. Olson

• Decision Date: 20 September 1913
• Citation: 26 N.D. 60,143 N.W. 340
• Parties: BISSEL v. OLSON.
• Court: North Dakota Supreme Court

26 N.D. 60

143 N.W. 340

BISSEL

v.OLSON.

Supreme Court of North Dakota.

Sept. 20, 1913.

Syllabus by the Court.

The burden is upon a party claiming a stream, which has not been meandered nor declared navigable by the Legislature, to be navigable to prove it to be navigable in fact.

To constitute a stream which is not tidewater navigable, it must be navigable in fact in its natural state, without aid of or reference to artificial means, and be of sufficient capacity to render it capable of being used as a highway of commerce either in the transportation of the products of the mines, forests, or of the soil of the country through which it runs, or of passengers.

To render a stream navigable, it must be capable of being used for a public highway a considerable part of the year, and it is not sufficient that it have an adequate volume of water therefor only occasionally, as a result of freshets, for brief periods of uncertain occurrence and duration.

A stream which is capable of being navigated, unaided by artificial means, during freshets or stages of water occurring frequently and at times of reasonable certainty, and continuing long enough to make its use of commercial value, is a public highway for that purpose.

The capacity of a navigable stream cannot be increased by artificial means to the injury of a riparian proprietor without compensation.

The criterion by which the navigability of a stream is determined is not that it is not used for purposes of commerce and traffic, but that it is not capable of such use in its natural state, and the value of evidence showing that it is used for navigation rests upon the proposition that that fact proves it navigable; while evidence that it never has been so used is not of equal weight, yet it is entitled to great weight as tending to show that it is not capable of being navigated to advantage, when it is shown that the river flows through an inhabited country, with towns on its banks, and commerce transacted between them.

This action was brought to enjoin defendant from maintaining a foot bridge across the Mouse river near Minot, in Ward county, between his buildings and a part of his land on the other side of the river, and the court granted a preliminary injunction, from which this appeal is taken. The order appealed from also commands the destruction of the bridge within 24 hours if not removed by the defendant. The river is not meandered. The testimony of plaintiff and his witnesses, aside from their conclusions that the river is navigable, rests upon statements that about the 1st of October, 1911, a 16-foot launch traversed a distance of 24 miles above Minot without difficulty; that about 18 years ago some piles for bridges were floated down the river from Minot (no date of this is given); that in September, 1906, a boat which drew 10 inches of water went down the river about 25 miles without difficulty, and about 10 years ago a building was rafted down the river from a point about 25 miles above the city of Minot; and that on the 7th of April, 1912, a boat drawing 8 inches of water passed down the river from a point in Renville county to the city of Minot, and that the witness could go down the river between Greene and Minot in an 18-foot launch, without stating the time of year when he could do so. Held, that under the rules above stated this evidence does not sustain the burden of proof resting upon the plaintiff, and prove the river navigable in fact, and particularly so in view of the testimony given by numerous well-known residents of the vicinity who had lived there from 25 to 29 years, setting forth the conditions of the river at different stages of water, and testifying that it could not be navigated.

A mistake in law committed by the trial court in deciding an application of this kind, in particular when it results in a mandatory injunctional order for the destruction of property, pending the trial of an action on its merits, is in a legal sense an abuse of discretion.

Appeal from District Court, Ward County; Leighton, Judge.

Action by George A. Bissel against Olaf A. Olson. From an adverse order, defendant appeals. Order vacated.

This is an appeal from an order of the district court of Ward county, enjoining the defendant from maintaining a bridge across the Mouse river a short distance northwest of the city of Minot, and directing the destruction of such bridge if not removed within 24 hours after the granting of the order. The order was made on a hearing, upon affidavits presented by both parties, immediately after the commencement of an action to permanently enjoin the maintenance of such bridge, and pending the trial of such action.

The Mouse river rises in the Dominion of Canada, and flows southeasterly through Ward county, N. D., and through the city of Minot to a point something like 30 miles southeast of said city, where it changes its course to northeasterly through McHenry county, and later northwesterly through a portion of McHenry county and across Bottineau county, back into Canada. At the point in question the defendant owns land on both sides of the river. His residence is on one side, and to reach his land on the other without the necessity of going some distance to a public bridge he constructed a small suspension footbridge between his buildings and a 30-acre tract on the opposite side of the river. Some years ago the Great Northern and the Soo Railways constructed dams across the river below the point in question to enable them to procure adequate supplies of water, and it is undisputed that one or both of these dams causes the water to set back some distance above defendant's bridge, and, whatever the fact as to the navigability of the river may have been prior to the construction of these dams, it is now navigable above them for some distance, including the point in controversy. The river was not meandered when the adjoining lands were surveyed; but patents were issued to settlers conveying the bed of the river. Plaintiff had been engaged for some time in running launches on the river to carry parties from the city of Minot, through defendant's premises, to a pleasure park northwest of the city, and this bridge interferes with such business.

Noble, Blood & Adamson, of Minot, for appellant. W. F. Doherty, of Minot, for respondent.

SPALDING, C. J. (after stating the facts as above).

Before considering the navigability of the stream, which is the question here involved, attention must be called to a few well-established principles.

[1] 1. When a stream claimed to be navigable is not meandered nor declared navigable by the Legislature, it is presumed to be nonnavigable, and the burden is upon the party claiming it to be navigable to show that it is so in fact. Morrison v. Coleman, 87 Ala. 655, 6 South. 374, 5 L. R. A. 384;Allaby v. Mauston Electric Service Co., 135 Wis. 345, 116 N. W. 4, 16 L. R. A. (N. S.) 420;Clute v. Briggs, 22 Wis. 607;Gaston v. Mace, 33 W. Va. 14, 10 S. E. 60, 5 L. R. A. 392, 25 Am. St. Rep. 848;Gwaltney v. S. C. T. & L. Co., 111 N. C. 547, 16 S. E. 692; 1 Farnham on Waters and Water Rights, p. 126.

[2] 2. When a stream is not tidewater (as in this case), it must be navigable in fact in its natural state, without the aid of or reference to artificial means, and be of sufficient capacity to render it capable of being used as a highway of commerce, either in the transportation of the products of the mines, forests, or of the soil of the country through which it runs, or of passengers. Kamm v. Normand, 50 Or. 9, 91 Pac. 448, 11 L. R. A. (N. S.) 290, 126 Am. St. Rep. 698; The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999; The Montello, 11 Wall. 411, 20 L. Ed. 191;Id., 20 Wall. 430, 22 L. Ed. 391;Lamprey v. State, 52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541;United States v. Rio Grande Dam & I. Co., 9 N. M. 292, 51 Pac. 674;Harrison v. Fite, 148 Fed. 781, 78 C. C. A. 447;East Hoquiam B. & L. Co. v. Neeson, 20 Wash. 142, 54 Pac. 1001.

[3] 3. It must be capable of being used for such purpose, that is, for a public highway, a considerable part of the year, and it is not sufficient that it have an adequate volume of water therefor only occasionally, as the result of freshets, for brief periods of uncertain recurrence and duration. Morrison v. Coleman, supra; Kamm v. Normand, supra; Toledo Lib. Shooting Co. v. Erie Shooting Club, 90 Fed. 680, 33 C. C. A. 233;Griffith v. Holman, 23 Wash. 347, 63 Pac. 239, 54 L. R. A. 178, 83 Am. St. Rep. 821;Wethersfield v. Humphrey, 20 Conn. 218;Cardwell v. Sacramento County, 79 Cal. 347, 21 Pac. 763;Munson v. Hungerford, 6 Barb. (N. Y.) 265;Rowe v. Granite Bridge Corporation, 38 Mass. (21 Pick.) 344;People v. Elk River, etc., Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. Rep. 125;Cue v. Breeland, 78 Miss. 864, 29 South. 850;Farmers, etc., Manufacturing Co. v. Albemarle, etc., Ry. Co., 117 N. C. 579, 23 S. E. 43, 29 L. R. A. 700, 53 Am. St. Rep. 606;Little Rock, etc., Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277;Hot Springs Lumber Co. v. Revercomb, 106 Va. 176, 55 S. E. 580, 9 L. R. A. (N. S.) 894;Bayzer v. McMillan Mill Co., 105 Ala. 395, 16 South. 923, 53 Am. St. Rep. 133.

[4] 4. A stream which is capable of being navigated, unaided by artificial means, during freshets or stages of water occurring frequently and at times of reasonable certainty, and continuing long enough to make its use of commercial value, is a public highway for that purpose. Kamm v. Normand, supra.

[5] 5. As bearing on the subject before us, it may be asserted that the capacity of a navigable stream cannot be increased by artificial means to the injury of a riparian proprietor without compensation. Kamm v. Normand, supra; Morgan v. King, 35 N. Y. 460, 91 Am. Dec. 58;Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 Pac. 813, 70 L. R. A. 272, 102 Am. St. Rep. 905;Thunder Bay Booming Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184;Koopman v. Blodgett, 70 Mich, 610, 38 N. W. 649, 14 Am. St....