Elder v. Delcour

• Decision Date: 14 June 1954
• Docket Number: No. 44247,44247
• Parties: , 47 A.L.R.2d 370 ELDER v. DELCOUR.
• Court: Missouri Supreme Court

Page 17

269 S.W.2d 17

364 Mo. 835, 47 A.L.R.2d 370

ELDER v. DELCOUR.

No. 44247.

Supreme Court of Missouri, En Banc.

June 14, 1954.

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

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

John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., R. A. Brown, Jr., St. Joseph, Lon S. Haymes, Springfield, amici curiae.

DALTON, Judge.

This is an action for a declaratory judgment concerning the right to float and fish the Meramec River where it flows across defendant's farm in Dent County several miles upstream from the mouth of Crooked Creek. Certain additional rights directly connected with the use of the river for the purposes mentioned are also claimed. Plaintiff seeks to establish his legal rights with reference to certain specific matters in view of the factual situation, which has been stipulated by the parties.

The trial court entered a judgment in accordance with plaintiff's contentions and defendant took an appeal to the Springfield Court of Appeals, where the judgment of the trial court was reversed and a judgment entered favorable to the contentions of the defendant. Elder v. Delcour, Mo.App., 263 S.W.2d 221. In view of the importance of the questions involved and the general interest therein, this court ordered the cause transferred to this court for further consideration and to re-examine the existing law. Section 10, Article V, Constitution of Missouri 1945, V.A.M.S. We shall review the cause as on original appeal.

As stated, the specific facts out of which the present controversy arose have been stipulated by the parties. In this case we are limited to these facts and such other facts as may be judicially noticed. Courts are not presumed to be ignorant of matters about which the general public knows and, accordingly, courts may take judicial notice of facts which are matters of common knowledge. Bowman v. Kansas City, 361 Mo. 14, 233 S.W.2d 26, 31. The issues presented here are judicial questions.

It is stipulated that defendant is the owner of a farm in Section 2, Township 35 North, Range 4 West in Dent County; that defendant resides on the farm with his family; that defendant's property is fenced and used by defendant as a farm; and that at various points thereon defendant has placed signs reading: 'Posted--no hunting, fishing or trespassing without permission.'

It is agreed that the Meramec River rises in the southeastern portion of Dent County some twenty-five miles by airline from defendant's farm, but a considerably greater distance if one should follow the meandering of the river; that the river flows across and through the lands owned by defendant; and that, at the point where the river crosses the defendant's property, 'this river is navigable in fact by canoes, rowboats, and other small floating craft of similar size and nature, but that it is not navigable in fact by larger boats and vessels.' It is further admitted that 'through that period of time in the past when logs and timber were customarily transported by floating' (which we understand to mean prior to the construction of hard surfaced roads and the use of automotive transportation) 'this stream was used for the purpose of floating logs and timber at the point of its crossing of the Delcour land and for many miles up the stream from this point.' It is further agreed that the stream is well stocked with fish; and that, at many points above and below defendant's farm, 'the stream is heavily fished by sportsmen both by wading, floating and from the bank.' Whether the stream as it passes through defendant's farm has been so fished by sportsmen in the manner stated does not appear from the stipulation, nor does the stipulation fix the duration of time during which the stream has been so 'heavily fished' by sportsmen. We take judicial notice of the fact that the Meramec River has long been known as a very popular fishing stream. And see State v. Wright, 201 Mo.App. 92, 208 S.W. 149, 150.

Amici curiae insist that for over one hundred years before our state highway system was established the Meramec River was continuously, and as a matter of right, used as a public highway for travel, floating, fishing and transportation of products by canoe; that such use was in recognition of the public easement therefor which had been long established and utilized; and that the existence of such use during such period should be recognized by this court. No such evidence appears in this record and we cannot take judicial notice that such conditions existed during such period on this river where it crosses the defendant's farm. Evidence of such facts has been received in other cases. United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, 265.

Plaintiff is a resident of Cole County and the holder of a state 'hunting and fishing license issued by the proper authorities of the State of Missouri whereby he is authorized to fish in said state under the laws and regulations applicable thereto.' On May 13, 1952, he had business in Crawford County some two miles north of defendant's farm and he then traveled by automobile to a public road crossing of the Meramec River at a point south of and upstream from the farm owned by defendant. At this public road crossing, plaintiff placed a canoe in the said river and, accompanied by his wife, he proceeded to float down the stream, fishing as he went. When plaintiff arrived at the south line of defendant's farm, 'he came to an obstruction across the stream in the form of a wire watergap fence and as he was pressing this obstruction down, in order to pass over the same, he was hailed from the bank of the stream by Mr. Delcour (defendant) who in substance ordered him to stop, advised him that he (Delcour) was the owner of the property upon which he was about to enter and instructed him not to enter thereon.' Defendant called plaintiff's attention to the fact that 'the land and stream were posted against trespassing, hunting and fishing'; and that defendant claimed the ownership of the stream. Defendant ordered plaintiff to turn and go back up the stream without entering upon his property. He further threatened that if plaintiff proceeded down the stream he would consult his attorney and either prosecute or would sue for damages for trespassing as might be recommended.

At that time plaintiff advised defendant that 'it was his (plaintiff's) belief and contention that he had a legal right to travel down the stream, fishing as he went * * * that in the course of the fishing it was his intention to tie up his canoe at such likely spots as he might find and (to) wade in the bed of the stream in order to fish those likely spots. * * * that in the event he found any obstruction across the stream which he was unable to remove he would then, as a matter of necessity, leave the stream and carry his canoe along the bank of the river in order to get around any such obstruction and it was his intention to stop and make camp upon the bank of the river for the purpose of eating lunch and to check his canoe for any repairs that might be needed * * * that in the event he caused any damage to the property of Mr. Delcour that he would be willing to pay any such damage but that the things that he proposed to do he claimed as a matter of legal right.' Defendant again warned plaintiff not to trespass upon his property, denying to him the rights claimed and again threatened suit or prosecution in the event that plaintiff proceeded. Plaintiff, however, 'pressed down the watergap obstruction and passed over the same continuing a short distance down the river to a point where he found a log jam across the river which could not be removed by him and at this point he and his wife removed the canoe from the stream and carried it along the bank of the stream and on Mr. Delcour's land for a distance of some thirty yards where they re-entered the stream. As they re-entered the stream he removed his fly rod from the canoe and waded down the bed of the stream for a distance of some one hundred yards fishing several likely spots * * *. Re-entering the canoe Mr. Elder (plaintiff) continued with his wife down the stream until they arrived at a place suitable for a camp site. At this point they left the stream, pulling the canoe upon the bank thereof where he made some minor repairs to his canoe and they ate lunch. After lunch they re-entered the stream and continued their float until they crossed off the Delcour property, proceeded to a public road crossing of the stream near Cook Station, where they removed their canoe from the river.'

The term 'log jam,' as used in the stipulation, is not defined, but we infer that it means an accumulation of logs, commercially cut or otherwise, which have floated in and lodged so as to completely block the use of the channel of the river for transportation by water.

The trial court determined the issues presented by the pleadings and declared the law respecting plaintiff's rights as follows: 'That the Meramec River at the place in question and as described in the petition is public water and subject to travel by plaintiff and those who desire to wade it or to float down it in boats * * * that plaintiff has a legal right to fish in said stream subject to the regulations of the Missouri Conservation Commission and the Laws of Missouri * * *.' The court declared that plaintiff had 'the legal right to carry his boat around obstacles in the river where obstructions preclude the passage of his boat, subject to liability for damage he might inflict on defendant's property * * * (and) the legal right to tie up his boat or to camp on said stream as long as he uses the stream bed, gravel bars and clearly recognizable area over which the stream flows during its normal stages.' The trial court further ordered 'that defendant desist in his efforts to hinder or close such...