Comm'rs Of Burke County v. Catawba Lumber Co. 1

• Decision Date: 27 December 1894
• Citation: 20 S.E. 707,115 N.C. 590
• Court: North Carolina Supreme Court
• Parties: COMMISSIONERS OF BURKE COUNTY. v. CATAWBA LUMBER CO. et al.1

20 S.E. 707

115 N.C. 590

COMMISSIONERS OF BURKE COUNTY.

v.CATAWBA LUMBER CO. et al.¹

Supreme Court of North Carolina.

Dec. 27, 1894.

Floatable Stream—What Constitutes—Injury to County Bridge—Injunction—Suit by Commissioners.

1. Where a nonnavigable river is suitable for floating logs only during freshets occurring 8 to 10 times each year, which last from 24to 48 hours, the public has no easement therein for the floatage of logs.

2. Code, § 704, authorizes counties to sue in the name of the county commissioners. Section 2055 provides that actions for damages for injuries to public bridges shall be brought in the name of the state. Held, that the county commissioners may sue in their name to "enjoin" an injury to a county bridge.

Appeal from superior court, Burke county; Allen, Judge.

Suit by the board of commissioners of Burke county against the Catawba Lumber Company and others for an injunction. From a decree dissolving a temporary injunction, plaintiffs appeal. Reversed.

S. J. Ervin and J. T. Perkins, for appellants.

Chas. A. Moore and I. T. Avery, for appellees.

MacRAE, J. In Gwaltney v. Land Co. (decided at this term , and previously in 111 N. C. 547, 16 S. E. 692), we carefully examined the subject involved in this controversy, and approved the issue framed by his honor establishing that which is necessary to create an easement for the purposes of floatage in the nonnavigable streams of this state. We repeat: "It is not necessary, in order to establish the easement in a river, to show that it is susceptible of use continuously during the whole year for the purpose of floatage, but it is sufficient if it appear that business men may calculate with tolerable regularity as to the seasons the water will rise to and remain at such a height as will enable them to make it profitable to use it as a highway for transporting logs to market or mills lower down." We approved the instruction: "If the freshet should arise from natural rainfall for a sufficient period to make it useful to the public, it would be considered a floatable stream. Temporary rise, passing quickly down, is not sufficient to make a stream floatable, and would not be sufficient if the freshet should continue up for even two or three days, and be reasonably expected every year." To apply these principles to the present case, his honor has carefully found the facts as to the manner of floating logs down these streams on ordinary water by a kind of improvised slack-water navigation, and by rolling the logs over the shoals. He has also found the manner adopted by the defendant of banking large numbers of logs along the streams, that they may be carried down at the will of the current in times of freshet, and without further assistance or direction; and that these rivers are wide and shallow streams, with frequent shoals, and it fully appears that they are useless for floatage purposes in ordinary water. While the...