2. Floatable Streams-Highways. To be a floatable stream so as to entitle the public to use it as a public highway, the stream need not be at all times capable of floating logs, but it will suffice, that, when the water is high, it is thus capable for such a length of time as would make it useful and profitable for the public to so use it as a highway to float logs to mill or market.
Statement of the case by Green, Judge:
This was an action on the case brought in the Circuit Court of Lewis county in November, 1883. The declaration was filed at January rules, 1884, and contained two couuts. The first count stated, that the plaintiff, Gaston, was possessed of a certain close on both sides of Stone Coal creek in said county and of a water-mill, water-wheels, head-gate with a mill-dam across said Stone Coal creek within his said close, formed by a wooden and stone structure, and abutting on each side of said creek within said close, which mill had been, of right ought to have been and still of right ought to be supplied with water for the working thereof, flowing down said Stone Coal creek into said mill-pond, owned by the plaintiff, in the said creek, formed by said wooden and stone structure, the dam aforesaid and flowing therefrom or into the head-gate aforesaid and into the water-wheel of the plaintiff aforesaid, which water so accumulated in the said mill-dam was of right used and enjoyed by the said plaintiff for the working of his mill aforesaid. Yet the defendants heretofore, to wit, in the year 1880, and since on divers days, threw, placed and deposited in the bed and channel of the said Stone Coal creek, above and near the said mill, large quantities of saw-logs, timber' and rubbish, that said saw-logs, timber and rubbish were washed, floated and carried into the said mill-dam of the said plaintiff and were carried and floated in and upon said wooden and stone structure of the plaintiff, so that by the pressure of the said logs, timber and rubbish the said wooden and stone structure was forced from its position across the stream aforesaid into the channel of said creek, and was wholly destroyed and lost to the said plaintiff, and his mill-dam occasioned by said structure ceased to exist, and the plaintiff was thereby deprived of the use of the water of the said creek to run and operate his mill aforesaid.
The second count in addition to the facts stated in the first count stated, that said defendants placed and deposited upon the bed and channel of the said Stone Coal creek and upon the banks of the same divers saw-logs and timber, which were washed, floated down and conducted down said creek, lodged and rested upon said structure, and by the pressure of the same carried away and wholly destroyed the wooden and stone structure aforesaid, by reason whereof the said plaintiff has been injured, and sustained damages to the amount of $1,000.00, and therefore he sues.
To this declaration, and each count thereof, the defendants demurred, and the plaintiff joined in the demurrer. The court overruled said demurrer, and the defendants pleaded "Not guilty," and put themselves upon the country, and the plaintiff did likewise, and issue was joined, and in July, 1885, the jury found a verdict for the defendants, and on July 14, 1885, the court pursuant to this verdict rendered a judgment, "that the plaintiff take nothing by his suit, and that the defendants go thereof without day and recover from the plaintiff their costs in this behalf expended," and the following memorandum was entered of record:
"The plaintiff excepted to certain opinions of the court in this cause, and tendered three bills of exceptions numbered one, two, and three respectively, which were signed by the court and ordered to be made a part of the record in this cause."
The following are the three bills of exceptions referred to in and made a part of the record:
"Bill of Exceptions No. 1. Isaac M. Gaston v. Geo. Mace and M. T. Lowndes. Trespass on the case. Be it remembered that on the trial thereof there was evidence to the jury tending to prove that the mill-dam in the declaration mentioned was, at the time of the alleged grievances complained of, at the same place on Stone Coal creek that a mill-dam had been from the year 1818 continuously to the commission of said grievances, and that from that time to the commission of said grievances had been rebuilt and repaired without material change in extent or dimensions; that said creek was not, in its natural condition, sufficient to float vessels or other craft, but that saw-logs could be floated upon the occurrence of floods therein by rains and melting snows; that said creek had not been used for floating saw-logs to its mouth at the West Fork river for market until the year 1880, and then, and since, and upon the occurrence of such floods for a short time, but that large quantities of logs had been floated down said stream since that time by a number of persons, and that said creek was useful to the public for that purpose, and that prior to 1880 some logs had been floated down said stream to said mill, there to be converted into lumber, and that the injury complained of by the plaintiff, if done at all by the defendants, was done while engaged in floating saw-logs down said stream, and over said dam, to market; that above said mill-dam there had been, on the line, between farms, and inside of farms above, water gaps across said creek for a number of years up to and prior to the time of the alleged grievances. And before the jury retired to consider of their verdict the plaintiff moved the court to give to the jury the following instructions: 'If the jury find that the plaintiff's dam was at the same place, and of like character in dimensions and height, for a period of twenty years or more, and had been so used for a period of twenty years or more, and further find that Stone Coal creek, in which said dam existed, was floatable for saw-logs and not for other purposes of navigation, still the plaintiff has a prescriptive right to have such dam, and so hold and use the same, notwithstanding said stream is floatable for saw-logs, and not for other purposes of navigation.' And the defendants objected to the same, and thereupon the court sustained said objection, and refused to give said instructions to the jury, to which action of the court in sustaining said objections, and in refusing to give said instructions to the jury, the plaintiff excepts, and tenders this, his bill of exception, which is signed by the court, and ordered to be made a part of the record hereof."
"Bill of Exceptions No. 2. Isaac M. Gaston v. Geo. Mace and R. T. Lowndes. Trespass on the case. Be it remembered that on the trial of this cause there was evidence to the jury tending to prove, as stated in bill of exceptions taken by the plaintiff, No. 1, and the court certifies, that there was no evidence to the jury that Stone Coal creek, by reason of its natural capacity, was navigable for floating lumber or other commercial goods, but was for logs, as stated in bill of exceptions No.1; and the defendants, before the jury retired, moved the court to give to the jury the following instructions, marked Nos. 4 and 5, respectively. Instruction No. 4 is as follows: 'If the jury believe that Stone Coal creek is, and has always been, by reason of its natural capacity, navigable for floating lumber, logs, and other commercial goods, the right of the public to use the same for such purpose cannot be lost or forfeited by reason of non-user of it, or maintaining an obstruction thereto, for any length of time, and under such circumstances the plaintiff could not acquire a right to maintain a dam or other obstruction to the public use of said stream.' Instruction No. 5 is as follows: 'In determining the question of the navigability of Stone Coal creek, it is the valuable, more than the continued, capacity that is to be considered. The real question is, can it be made a valuable and beneficial aid to the public in getting the products of the country to market?'And thereupon the plaintiff objected to each of said instructions, but the court overruled said objections, and gave to the jury the said instructions No. 4 and No. 5; to which ruling of the court in overruling said objections and giving said instructions the plaintiff excepts, and tenders this, his bill of exception, which is signed by the court, and ordered to be made a part of the record hereof."
"Bill of Exceptions No. 3. Isaac M. Gaston v. Geo. Mace and R. T. Lowndes. Trespass on the case. Be it remembered that the plaintiff entered his motion to set aside the verdict found by the jury herein, and to grant a new trial, because the court refused to give the instructions to the jury set out in bill of exceptions No. 1, taken by the plaintiff, and because the court overruled the objections of the plaintiff to instructions numbered 4 and 5, asked by defendants, and set out in bill of exceptions No. 2, taken by plaintiff, and because the court gave to the jury said instructions numbered 4 and 5; but the court overruled the motion to set aside said verdict and to grant a new trial, and thereupon caused judgment to be entered according to the verdict; to which ruling of the court the plaintiff excepts, and tendered this, his bill of ex- ceptions, which is...
