Bissel v. Olson

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

143 N.W. 340

26 N.D. 60

GEORGE A. BISSEL v. OLAF A. OLSON

Supreme Court of North Dakota

September 20, 1913

Appeal from an order of the District Court for Ward County Leighton, J.

Reversed.

Order of the trial court vacated, and appellant recovered his costs.

Noble Blood, & Adamson for appellant.

Failure to prove that the stream obstructed, is navigable, deprives the plaintiff of right to injunctive relief or to damages. The stream must be navigable in fact. State ex rel Guenther v. Charleston Light & Water Co. 68 S.C. 540, 47 S.E. 979; Smart v. Aroostook Lumber Co. 103 Me. 37 14 L.R.A.(N.S.) 1083, 68 A. 527; Walker v. Allen, 72 Ala. 456; Sullivan v. Spotswood, 82 Ala. 163, 2 So. 716; Healy v. Joliet & C. R. Co. 2 Ill.App. 435; Com. v. Charlestown, 1 Pick. 180, 11 Am. Dec. 161; Rowe v. Granite Bridge Corp. 21 Pick. 344; Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209; Carter v. Thurston, 58 N.H. 104, 42 Am. Rep. 584; State v. Narrows Island Club, 100 N.C. 477, 6 Am. St. Rep. 618, 5 S.E. 411; Farmers' Co-op. Mfg. Co. v. Albemarle & R. R. Co. 117 N.C. 579, 29 L.R.A. 700, 53 Am. St. Rep. 606, 23 S.E. 43; State v. Twiford, 136 N.C. 603, 48 S.E. 586; Hickok v. Hine, 23 Ohio St. 523, 13 Am. Rep. 255; State v. Pacific Guano Co. 22 S.C. 50; Webster v. Harris, 111 Tenn. 668, 59 L.R.A. 324, 69 S.W. 782; The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999; The Montello, 11 Wall. 411, 20 L.Ed. 191; Miller v. Enterprise Canal & Land Co. 142 Cal. 208, 100 Am. St. Rep. 115, 75 P. 770; Goodwill v. Police Jury, 38 La.Ann. 752; Turner v. Holland, 65 Mich. 453, 33 N.W. 283; Southern R. Co. v. Ferguson, 105 Tenn. 552, 80 Am. St. Rep. 908, 59 S.W. 343; Dawson v. McMillan, 34 Wash. 269, 75 P. 807; Baldwin v. Erie Shooting Club, 127 Mich. 659, 87 N.W. 59; Schulte v. Warren, 218 Ill. 108, 13 L.R.A.(N.S.) 745, 75 N.E. 783; Bayzer v. McMillan Mill Co. 105 Ala. 395, 53 Am. St. Rep. 133, 16 So. 923; Lewis v. Coffee County, 77 Ala. 190, 54 Am. Rep. 55; Burroughs v. Whitwam, 59 Mich. 279, 26 N.W. 491; Morgan v. King, 35 N.Y. 453, 91 Am. Dec. 58; Groton v. Hurlburt, 22 Conn. 178; Munson v. Hungerford, 6 Barb. 270; Tuscaloosa County v. Foster, 132 Ala. 392, 31 So. 589; Neaderhouser v. State, 28 Ind. 270; Leovy v. United States, 177 U.S. 621, 44 L.Ed. 914, 20 S.Ct. 797; Kamm v. Normand, 50 Ore. 9, 11 L.R.A.(N.S.) 290, 126 Am. St. Rep. 698, 91 P. 448.

The burden is upon plaintiff to show that the stream is navigable. Morrison Bros. v. Coleman, 87 Ala. 655, 5 L.R.A. 384, 6 So. 374; Allaby v. Mauston Electric Service Co. 135 Wis. 345, 16 L.R.A.(N.S.) 420, 116 N.W. 4; Clute v. Briggs, 22 Wis. 607.

The water of stream, to be navigable, must be so in its natural state, without the aid of any artificial means. Bayzer v. McMillan Mill Co. 105 Ala. 395, 53 Am. St. Rep. 133, 16 So. 923; Little Rock, M. R. & T. R. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277; Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209; East Branch Sturgeon River Improv. Co. v. White & F. Lumber Co. 69 Mich. 207, 37 N.W. 192; Curtis v. Keesler, 14 Barb. 511; Ten Eyck v. Warwick, 75 Hun, 562, 27 N.Y.S. 536; De Camp v. Thomson, 16 A.D. 528, 44 N.Y.S. 1014; Kamm v. Normand, 50 Ore. 9, 11 L.R.A.(N.S.) 290, 126 Am. St. Rep. 698, 91 P. 448; Webster v. Harris, 111 Tenn. 668, 59 L.R.A. 324, 69 S.W. 782; Griffith v. Holman, 23 Wash. 347, 54 L.R.A. 178, 83 Am. St. Rep. 821, 63 P. 239; East Hoquiam Boom & Logging Co. v. Neeson, 20 Wash. 142, 54 P. 1001; Gaston v. Mace, 33 W.Va. 14, 5 L.R.A. 392, 25 Am. St. Rep. 848, 10 S.E. 60; The Montello, 20 Wall. 430, 22 L.Ed. 391.

The stream, not being meandered, makes it prima facie non-navigable. Morrison Bros. v. Coleman, 87 Ala. 655, 5 L.R.A. 384, 6 So. 374; Allaby v. Mauston Electric Service Co. 135 Wis. 345, 16 L.R.A.(N.S.) 420, 116 N.W. 4.

Nor is it one declared by any act of the legislature to be a navigable stream. Clute v. Briggs, 22 Wis. 607.

An injunction issues during the litigation, usually, to keep the rights of the parties and the subject-matter in statu quo. An injunction which is in effect mandatory will not be granted pendente lite, except in rare cases. Way v. Hayes, 124 N.Y.S. 648; Maloney v. Katzenstein, 135 A.D. 224, 120 N.Y.S. 418; Lehigh Valley R. Co. v. New York & N. J. Water Co. 76 N.J.Eq. 504, 74 A. 970; Gaslight Co. v. South River, 77 N.J.Eq. 487, 77 A. 473; Wright Co. v. Herring-Curtiss Co. 103 C. C. A. 31, 180 F. 110.

Even on final hearing, such an injunction will not be awarded unless it clearly appears that the stream obstructed is navigable. 29 Cyc. 323; State v. Carpenter, 68 Wis. 165, 60 Am. Rep. 848, 31 N.W. 730; Buffalo v. Delaware, L. & W. R. Co. 60 Misc. 584, 112 N.Y.S. 690.

Where the facts upon which the right to an injunction is based, are in dispute, one will not be granted. 16 Am. & Eng. Enc. Law 360; Post v. Young, 7 Kulp, 102; Roath v. Driscoll, 20 Conn. 539, 52 Am. Dec. 352; Chouteau v. Union R. & Transit Co. 22 Mo.App. 286; Swan v. Indianola, 142 Iowa 731, 121 N.W. 547.

W. F. Doherty, for respondent.

Where an unauthorized obstruction has been erected in or over a navigable stream, a preliminary injunction may be granted before final determination. Kamm v. Normand, 50 Ore. 9, 11 L.R.A.(N.S.) 290, 126 Am. St. Rep. 698, 91 P. 448; 29 Cyc. 322, note, 95.

Relief by mandatory injunction has been awarded pendente lite, in many cases involving questions similar to those here presented. 1 High, Inj. 4th ed. § 804; Dickson v. Dows, 11 N.D. 404, 92 N.W. 797; 2 High, Inj. 4th ed. § 1696.

If the injunction cannot prejudice defendant's rights, and its dissolution might seriously impair plaintiff's rights, the motion to dissolve should not prevail. 2 High, Inj. 4th ed. § 1511.

On motion to dissolve, if the evidence is evenly balanced, the injunction will be continued. 22 Cyc. 1000.

The finding of the court on the same question in another action may be considered on such motion. Barker v. Oswegatchie, 41 N.Y. S. R. 821, 16 N.Y.S. 727.

Matters occurring in the presence of the court, in a former action, may be considered on such motion. Howard v. Lowell Mach. Co. 75 Ga. 325.

Courts may take judicial notice of certain transactions and matters--and must do so in some cases. Rev. Codes, 1905, § 7318; Amundson v. Wilson, 11 N.D. 193, 91 N.W. 37.

But a criminal sentence is not evidence in civil cases. Black, Judgm. 2d ed. § 603.

SPALDING, Ch. J. GOSS, J., did not participate in the decision.

OPINION

Statement of Facts.

SPALDING J.

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 twenty-four 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, North Dakota, and through the city of Minot to a point something like 30 miles southeast of sad 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 those 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.

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

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

2. When a stream is not tide water (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 Ore 9, 11 L.R.A.(N.S.) 290, 126 Am. St. Rep. 698, 91 P. 448; The Daniel Ball...