Castner v. Steamboat Dr. Franklin

• Decision Date: 01 January 1852
• Citation: 1 Minn. 73
• Parties: JOHN M. CASTNER et al. vs. THE STEAMBOAT DR. FRANKLIN.
• Court: Minnesota Supreme Court

Page 73

1 Minn. 73

JOHN M. CASTNER et al. vs. THE STEAMBOAT DR. FRANKLIN.

Supreme Court of Minnesota.

Error to district court, Ramsey county.

Rice, Hollinshead & Becker, for plaintiffs in error.

Babcock & Wilkinson, for defendants in error.

MEEKER, J.

This is a special proceeding pursuant to the act entitled "an act to provide for the collection of demands against boats and vessels," found in the revised statutes, laws of Wisconsin territory, p. 168-9-70. On the 4th of August, 1851, the plaintiffs below obtained a warrant for the seizure of the boat, which was executed on that day, being based upon a complaint verified by Castner, one of said plaintiffs. It set forth that the plaintiffs were partners, doing business under the name of John M. Castner & Co.; that they were lawfully possessed of 48 saw logs, of the value of $160, lying in a slough near what is commonly called the upper landing in St. Paul; that they were not in the channel of the Mississippi river; but whilst lawfully boomed and secured, on the 2d of June, 1851, the said boat, being under the management of the captain, officers and pilot, unlawfully ran into the said slough, and unlawfully ran against the boom by which the said logs were confined, and thereby greatly broke, damaged, and injured the said boom, and thereby the said logs of the plaintiffs were lost, floated away, and destroyed. Further; at and before the time aforesaid, the plaintiffs were lawfully possessed of a quantity of hard wood saw logs, of the value of $160, then lawfully lying at or near a saw mill, known as the upper saw mill, in St. Paul; which logs were lawfully secured by a boom around them, made for that purpose, and were out of the main channel of the Mississippi river. Yet the said boat being under the management of the master, through his management unlawfully ran into the said slough, and unlawfully broke and damaged the boom; and thereby, said logs, to-wit: 48 hard wood saw logs, of the value of $160, floated away; and thereby by reason of the unlawful breaking of the said boom as aforesaid, the plaintiffs suffered great loss and damage, to-wit: $260. This is the substance and the language of their complaint. To this the defendants, the owners of the boat, answered and pleaded as follows: That the said steamboat, Doctor Franklin, did not commit the acts and injuries in manner and form as the plaintiffs have above thereof complained, nor any, nor either of them. That if said logs, in said boom mentioned, were lying and being at the place therein set forth, they were unlawful obstructions to the free navigation of the Mississippi river, were in said river, and subject to be removed and abated as public nuisances, and that the course and direction of the said steamboat Doctor Franklin, at the time and place in the said complaint mentioned, were on and in a public highway, free of passage to all boats and vessels of every citizen of the United States; and that the said steamboat, Doctor Franklin, could not in any other manner, or by taking any other course or direction, land her passengers and freight at the upper landing, &c.

The cause was tried at the September term, 1851, and a verdict and judgment for $150, and costs, were rendered for plaintiffs. This judgment is impeached in the assignment of errors, on the ground that the judge who tried the cause misdirected the jury, and refused to give the instructions as asked by the counsel for the defendants.

The first question of any moment that arises on the record before us, and that upon which the defense mainly is made to depend, is whether the Mississippi is, in the legal acceptation of the term, a navigable river; for if it be not, then the right, privilege, and exemption relied on by the defendants are seriously abridged and modified. If it be such a navigable stream, then the rights of the plaintiffs in this cause are favored and fortified by the rights that result to the public. By the common law, that was a navigable stream only in which the tide ebbed and flowed, and to the extent only of such ebb and flow. The soil under the river navigable in this sense of the word, does not belong to the riparian proprietors, but to the public. The adjustment of controversies between individuals and the public in England and America, has been by ascertaining the extent of the flowing of the tide where such controversies arose on rivers thus defined to be navigable. This contracted view of the subject, afforded by the common law, proceeds from the fact, that that system arose by the almost imperceptible progress of ages, in a country of limited extent, which contains but two rivers, the Thames and Severn, of any use to the public for navigable purposes, up both of which the tide ebbs and flows. As England had but these, it was natural for the law of that country to prescribe the ebb and flow of the tide as one of the essential qualities of a navigable river. In the early settlement of the United States, the colonists brought along with them the common law, which was the birthright of Englishmen, and adopted it as their rule of right, action and property, qualified only so far as their new condition and home rendered certain provisions of it inapplicable or unnecessary. In this manner the definition of a navigable stream gained currency among the colonists by tacit consent, at a time when steam propellers were unknown, and our rivers little used by other craft. Thus, before art and the internal trade and commerce of our country had developed the value of our majestic water-courses, an arbitrary rule had excluded many of them from the dignity and character of navigable waters, eo nomine — attended with all the legal consequences and inconveniences, not to say absurdities, resulting to the public and to individuals, from such a construction. Under the application of this authority, the public have been incommoded by the successful assertion of the technical rights of riparian proprietors. The navigation of large streams has been embarrassed and impeded by individual ownerships and improvements. Lands bounded by navigable rivers, have carried, as incidents of this circumstance, the exclusive right to the soil to the middle of the stream, and where they were united in the same person on both sides of the river, such person has exercised the exclusive control of the entire channel adjacent. Such is the origin, progress and operation of this principle of the common law.

We do not think that the ordinance of 1787, so far at least as the Mississippi is concerned, has worked any change of the law upon this subject, and are of opinion, that if this river is navigable, in that sense that will secure to the public all the rights, privileges, and immunities incident to streams navigable at common law, it must be so from other reasons and different authority than that celebrated law. The language of the ordinance above alluded to is, that "The navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of said territory as to the citizens of the United States, and those of any other state that may be admitted into the confederacy, without any tax, impost, or duty therefor." There was obviously no intention on the part of congress to constitute these vast rivers, two of the largest in the world, mere highways for travel and commerce,...