Commissioners of Burke County v. Catawba Lumber Co.

• Decision Date: 14 May 1895
• Parties: COMMISSIONERS OF BURKE COUNTY v. CATAWBA LUMBER CO.
• Court: North Carolina Supreme Court

21 S.E. 941

116 N.C. 731

COMMISSIONERS OF BURKE COUNTY v. CATAWBA LUMBER CO.

Supreme Court of North Carolina

May 14, 1895

On rehearing. Reversed.

For former opinion, see 20 S.E. 707, 847.

Between a point on the river where defendant's mill was located and the place where logs were cut for transportation thereto were shoals where the water was not deep enough to permit the passage of logs, but eight or ten times a year, at irregular intervals, the river rose several feet, remaining at such height from 24 to 48 hours, during which time logs were carried over the shoals without artificial assistance. Held that the river was a floatable stream, in which the public had an easement, the reasonable use of which was paramount to the rights of riparian owners.

Moore & Moore, I. T. Avery, and C. M. Busbee, for petitioner.

S. J Ervin, J. T. Perkins, and Burwell, Walker & Cansler, for respondent.

AVERY J.

It seems to be settled law in North Carolina, as in all of the states, that navigable streams of every class, however defined or distinguished from other water courses, are natural highways, and that the public easement, whatever may be its extent, is paramount to the private right of the riparian proprietor. State v. Narrows Island Club, 100 N.C. 481, 5 S.E. 411; State v. Glen, 7 Jones, 326, 327; Broadnax v. Baker, 94 N.C. 675; Gould Waters (2d Ed.) §§ 86, 87, 107, 108, 110; Ang. Water Courses, 541a; 16 Am. & Eng. Enc. Law, p. 236; Sullivan's Ex'rs v. Jernigan, 21 Fla. 264. All waters, including bays, inlets, rivers, and creeks, "which are navigated by sea vessels," said the court in State v. Glen, 7 Jones, at page 323, "are called 'navigable' in a technical sense, are altogether publici juris, and the soil under them cannot be entered and a grant taken out under the entry law. *** When the tide ebbs and flows, the shore between the high and low water *** may be the subject of direct, special legislative grant. Ward v. Willis, 6 Jones, 185"; Bond v. Wool, 107 N.C. 139, 12 S.E. 281. The court in that case went on to say that the beds of other streams were "technically styled 'unnavigable,"' and were open for appropriation by individuals by means of grants from the state. In order to direct the attention more closely to the development of the principles governing the case at bar by a line of decisions in this state, and especially to controvert the contention of counsel that owners of the beds of inland rivers, not navigable for vessels, have the absolute control of the streams, we reproduce the following from the opinion of Merrimon, J., in State v. Narrows Island Club, supra: "The learned counsel for the appellant pressed upon our attention State v. Glen, 7 Jones, 321, as an authority favoring strongly the absolute right of the owner of the whole bed of the river. This is certainly a misapprehension of the real meaning of that case. The river to which it referred was ascertained to be unnavigable, and the case does not contradict what we have here said. Indeed, the court recognized the public right in case of the navigability of the stream. It said: 'As the riparian proprietor of the land on both sides of the stream, he is clearly entitled to the soil entirely across the river, subject to an easement in the public for the purpose of transportation of flour and other articles in flats and canoes.' It appeared that flatboats were occasionally used in transporting the articles named." It still remained for this court, when the forests of the state began to attract attention, and to invite capital to utilize them in commerce, to determine in precisely what classes of streams not technically navigable the easement which was paramount to the right of the actual owner of the bed of the river, or of the riparian proprietor on both sides, existed. In McLaughlin v. Manufacturing Co., 103 N.C. 108, 9 S.E. 307, this court, adopting the classification of streams laid down by Wood in his work on Nuisances (2d Ed., § 457 et seq.), defined a navigable stream of the third class to be one which is "floatable or capable of valuable use in bearing the products of the mines, forests, and tillage of the country it traverses to mills or markets." That case was cited and approved subsequently in the case of State v. White Oak River Corp., 111 N.C. 663, 16 S.E. 331. In the dissenting opinion (which was written before the opinion of the court) in Gwaltney v. Land Co., 111 N. C., at page 567, 16 S.E. 692, will be found a definition of a floatable stream, which was adopted by the court (see page 552, 111 N. C., and page 692, 16 S. E.), and which has been since reiterated with approval in Gwaltney v. Land Co., 115 N.C. 581, 20 S.E. 465, and in Commissioners of Burke Co. v. Catawba Lumber Co., 115 N.C. 595, 20 S.E. 707, 847 (the case now before us for rehearing). The language so often approved is as follows: "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 that, with tolerable regularity as to seasons, the water will rise to and remain at such a height as will enable them to make it profitable to use as a highway for transporting logs to mills or markets lower down." Justice MacRae, in Gwaltney v. Land Co., supra, quoting further from the same opinion, says: "When prudent business men may regulate their expenditures with reference to the anticipated rise, the stream becomes a factor in conducting the commerce of the country." In the former opinion in this case the court laid down as a further test of floatability the rule that "a 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. *** The increase in the depth of the streams occasioned by the rainfall sufficient to float logs occurs 8 or 10 times each year, and the water subsides in 24 or 48 hours. *** We are of the opinion that this floatability on the occasional and tolerably regular rises of the river must depend on more than a rapid freshet, subsiding as rapidly."

The first question raised by the petition and order granting the rehearing is whether the two rules laid down as criteria for determining the capacity of streams to subserve the purpose of channels of commerce are not so inconsistent that both cannot be allowed to stand as guides to the people, who are anxious to understand and observe the law, as well as to the profession, whose office it is to advise them. If a stream rises to a sufficient height eight or ten times a year to carry down all the logs that have been rolled into it, may it not be possible that prudent business men would calculate with reasonable certainty on and regulate their expenditures with reference to an anticipated rise that will make the use of the stream as a highway profitable, notwithstanding the fact that it continues for only two or three days, or even a shorter time? The capacity to carry logs from the place, when they are shipped upon it, and deliver them at the point where they are taken out for use, depends chiefly upon the velocity of the stream and the distance they are transported. Courts are not required to so restrict the limit to which judicial knowledge extends as to exclude matters which are of common observation and within the knowledge of all intelligent men. Deans v. Railroad Co., 107 N.C. 693, 12 S.E. 77.

If a stream should carry a log at a velocity of 3 miles an hour then in three days or seventy-two hours it would be transported a distance of 216 miles, in two days 144 miles, in one day 72 miles. It may be that the longest distance for which the Catawba river is used is not 72 miles, and that Johns river is not used for more than half that distance. If all the logs awaiting removal on the banks of each stream were removed only 10 times a year, but at irregular intervals extending over the 9 fall, winter, and spring months, it is not impossible--indeed, it is almost certain--that any prudent business man could arrange to get all the logs needed in 10 deliveries; yet it is probable that all are delivered more than 50 times instead of 10. How can we arbitrarily fix a minimum period for transportation, and at the same time leave the capacity for yielding a reasonably certain profit, as a test of floatability? If it may be true that all logs placed alone in either stream would be delivered at the mills of defendant from 27 to 63 times or oftener in the course of a year, how can we hold that the rises must occur more frequently or continue longer, and leave people who wish to know and obey the law in such a state of doubt and uncertainty that they would be deterred without further information from engaging in this important branch of commerce? The rule which makes susceptibility to use, as a channel for transporting the products of mines and forests, the criterion of floatability, is a test which any intelligent lumberman can comprehend and apply. The other criterion which, without regard to the probable profits of the business or the actual condition of the stream, would exclude from the benefits of a water highway one who locates his plant on a swift mountain water course, which subsides within two or three days, and extend the easement in a sluggish stream to another person if he settle in the low country, though the water may land as many logs for the one in one day as for the other in four days, is manifestly arbitrary and inconsistent with the rule that has so often been sanctioned, not only by this court in the cases we have cited, but approved by all of the leading text writers and the courts of...