Elder v. Delcour

• Decision Date: 10 December 1953
• Docket Number: No. 7179,7179
• Citation: 263 S.W.2d 221,241 Mo.App. 839
• Parties: ELDER v. DELCOUR.
• Court: Missouri Court of Appeals

Page 221

263 S.W.2d 221

241 Mo.App. 839

ELDER v. DELCOUR.

No. 7179.

Springfield Court of Appeals, Missouri.

Dec. 10, 1953.

George F. Addison, W. E. Seay, Salem, Jay V. White, Llyn Bradford, Rolla, for appellant.

L. Clark McNeill, Salem, Samuel Richeson, Potosi, for respondent.

McDOWELL, P. J.

This action is under the declaratory judgment act to determine the right of plaintiff and others to use the Meramec River for the purposes of fishing by boat or wading therein. It is contended by defendant that the river is non-navigable; that he is the owner of the bed of the stream and has the legal right to restrain the public from using said river where it flows through his land in Dent County.

The cause was tried before the court resulting in a judgment and finding that the Meramec River, where it crosses defendant's land, is public water and subject to travel by plaintiff and those who desire to wade or float down it in boats. Defendant appealed.

We shall refer to the appellant as defendant and to respondent as plaintiff in this opinion, being the position they occupied in the lower court.

The cause was submitted on an agreed statement of facts. We here set out such part of said statement of facts as is necessary for a decision of the issues in this case.

It is agreed that defendant is the owner of a farm in Dent County, through which the Meramec River flows; that he had displayed signs reading 'posted--no hunting, fishing or trespassing without permission'.

It is agreed that the Meramec River rises in Dent County about 25 miles from defendant's farm and flows through defendant's farm; that it is navigable in fact by canoes, row boats and other small floating craft but is not navigable by larger boats or vessels. It is admitted that in a period of the past logs and timber were customarily transported by floating at the point where the river crosses defendant's land and for many miles up stream; that the same now has the capacity and suitability for such use; that the stream is well stocked with fish at many points in the vicinity of defendant's farm and at points above and below said farm and is heavily fished by sportsmen, both wading and floating from the bank. It is agreed the farm is several miles up stream from the mouth of Crooked Creek.

It is agreed that plaintiff is a resident of Cole County Missouri, and holds a state hunting and fishing license authorizing him to fish; that on the 13th day of May, 1952, plaintiff had business at the village of Cook Station, in the south edge of Crawford County, some two miles north of defendant's land; that on that day he placed a canoe in the river and, accompanied by his wife, proceeded to float down the river, fishing until he arrived at defendant's farm where he found a water gate obstructing his passage over defendant's land and was, by the defendant, ordered not to go upon defendant's property. Defendant informed plaintiff that he claimed to own the bed of the stream and that the farm was posted and threatened plaintiff with a suit for damages for trespassing if he entered upon the land. Plaintiff informed defendant that he intended to cross the water gap and proceed down the river across defendant's land; that it was his intention to tie up his canoe at likely spots and to wade the bed in order to fish such likely spots; that if he found obstructions across the stream he could not remove he would carry his canoe around said obstructions on the bank and that it was his intention to make camp upon the bank of the river for the purposes of eating lunch and repairing the canoe, if needed.

It is admitted that after plaintiff was forbidden to enter defendant's land, he pressed down the water gap and proceeded down the river; that he did find a log jam across the river and he and his wife removed the canoe from the stream, carried it on the bank around the obstruction and reentered the stream below; that he did wade down the bed of the stream fishing likely spots on defendant's land; that plaintiff continued to float across defendant's property to a public road crossing near Cook Station.

The first issue raised by defendant is that the Meramec River, at the point in question, is not a public highway in the sense that it is open to the free and unrestricted use for the purpose of passage and navigation.

To support this contention defendant cited State ex rel. Applegate v. Taylor, 224 Mo. 393, 123 S.W. 892, 919.

In this case the court was discussing statutes which authorized the altering of natural streams not navigable when the same is necessary to drain land. It was discussing the Chariton River and the question as to whether the legislature, by the use of the words in the act of 1845, 'a public highway', made the stream a navigable stream and, in this opinion, the court made the following statement of law:

'* * * When we consider the size, location, and uses to which those streams were then being put to, the conclusion is irresistible that the Legislature never once thought of constituting and declaring them and like streams to be public highways in the sense of navigability. No ordinary boat could ply any of them, and but few of them at ordinary stages of water were capable of floating an ordinary canoe. While some of them during the dry seasons would scarcely float a pill box. To hold under this state of facts that it was the design of the Legislature to constitute and declare these small rivers and creeks to be navigable streams within the ordinary meaning of those words would be absurd and a reflection upon the intelligence of the Legislature and upon the court that should so hold. * * *

'We, therefore, hold that Chariton was not a navigable river within the meaning of said acts of 1903 and 1905, authorizing the organization of drainage districts * * *.'

Defendant cites Laws of Missouri 1839, page 83 and Laws of Missouri 1856-57, page 172.

We find it is unnecessary to discuss the state laws which declare certain non-navigable streams to be public highways. In the first place the Supreme Court of this state has held that the legislature has no right to declare a non-navigable stream navigable. The law clearly is that the question as to whether or not a stream is navigable is a judicial question.

It would seem in this case that at one time the Missouri Legislature did declare the Meramec River a public highway up to the mouth of Crooked Creek but even this act was later repealed. If there is any conclusion to be gotten from this legislative act, it would be that that part of the river which was not declared a public highway was non-navigable. However, we think that the act of the legislature is of no benefit in passing upon the question in issue.

Plaintiff, under the first point made in his brief, cited State ex rel. Citizens' Electric Lighting & Power Co. v. Longfellow, 169 Mo. 109, 69 S.W. 374, 377.

In this case the Supreme Court quotes from Howard v. Ingersoll, 13 How. 381, 391, 54 U.S. 381, 391, 14 L.Ed. 189 as follows:

'The same author, in section 54, says: 'Nature is competent, it has been said, and it is now established in this country, overruling the earlier decisions, that the public have a right of passage over all fresh-water streams which are by nature susceptive of general use, and that in general those rivers are public and navigable in law which are navigable in fact.' A riparian owner is entitled to access to the waters and to the use of the waters for all purposes not inconsistent with the public right of navigation thereon. * * *'

We fully agree with the law as stated in this case and cited by plaintiff, but it does not support plaintiff's contention, that is, that the river is navigable in fact.

Plaintiff cites State v. Wright, 201 Mo.App. 92, 208 S.W. 149, 150, supporting his contention that rivers which are public and navigable in law are navigable in fact. We quote from that opinion:

'The island in question is shown to be owned by the Wright Company and was so adjudicated in Wright Lumber Co. v. Ripley County, 270 Mo. 121, 136, 192 S.W. 996, where the court also held that Current river is a nonnavigable stream in the sense that the fee title of a riparian landowner extended to the middle of the stream. This river is shown, however, to be 'a pretty good sized little stream,' as one witness said, and is extensively used by small boats and river craft, as well as for rafting logs and all kinds of timber products to market. We take judicial knowledge also, in a way, that it is a fine fishing stream, and that boats are used for that purpose also. This court, in Weller v. [Missouri] Lumber [& Mining] Co., 176 Mo.App. 243, 256, 161 S.W. 853, 857, took notice that this same river is navigable in the sense that it is 'capable of transporting commerce in any manner in which * * * commerce is ordinarily conducted is a navigable or floatable stream and is a public highway.' In McKinney v. Northcutt, 114 Mo.App. 146, 161, 89 S.W. 351, 355, the court held that a natural stream of water capable of being used for floating rafts of logs, timber, or ties to market, is navigable in the sense that it is a public highway which no one, even a riparian owner, has a right to obstruct, 'and the rights of the riparian owners to the soil adjacent to and underlying the bed of such stream are subject to this right of easement in the public which rests on the necessities of commerce'; that the public 'had a right to occupy the stream in floating his ties to market without inflicting injury upon the adjacent property.' In Northcut v. [John O. Long Tie &] Lumber Co., 187 Mo.App. 386, 389, 173 S.W. 15, this court upheld the right of the public to use streams smaller than Current river as public highways for floating ties and timber, and that a person so using it would not be liable for damage to a riparian owner except on proof of negligence * * *.'

We fully agree that the law as stated herein is that where the stream is capable of carrying...