Grice v. Clearwater Timber Co.

• Decision Date: 19 June 1911
• Citation: 20 Idaho 70,117 P. 112
• Parties: OTTO GRICE, Appellant, v. CLEARWATER TIMBER CO., Respondent
• Court: Idaho Supreme Court

117 P. 112

20 Idaho 70

OTTO GRICE, Appellant, v. CLEARWATER TIMBER CO., Respondent

Supreme Court of Idaho

June 19, 1911

CONSTITUTIONAL LAW-STATUTORY CONSTRUCTION-LOCAL OR SPECIAL LAWS-HIGHWAYS - MAINTAINING OF - DAMS AND BOOMS ACROSS NAVIGABLE RIVERS-LEGISLATIVE ACT.

(Syllabus by the court.)

1. The legislature passed a special or local act, which was approved February 15, 1911, entitled "An act relating to dams and booms in the North Fork of the Clearwater river and in the tributaries thereof," etc. (Sess. Laws 1911, p. 343) which act authorized the construction of dams and booms in said river and tributaries thereof, and provided that any such dam or boom shall have connected therewith sluiceways or other fixture, appliance or opening sufficient and so arranged as to permit floating timber in the form of loose logs, boards, planks, lumber, ties, poles, rails, posts cordwood or beams, but not in rafts, booms or brails, to pass around, through or over such dam or booms without unreasonable delay or hindrance.

2. The legislature is prohibited by the provisions of sec. 19, art 3, of the state constitution, from passing any local or special laws authorizing the "laying out, opening altering, maintaining, working on or vacating roads, highways, streets, alleys, town plats, parks, cemeteries, or any public grounds not owned by the state."

3. The word "highway" is defined by sec. 850, Rev. Stats. 1887, as follows: "Highways are roads, streets or alleys, and bridges, laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the public."

4. The framers of the constitution evidently used the word "highway" in its ordinary and popular sense, and as defined by said section of the statute, which was in force at the time of the adoption of the constitution.

5. While the word "highway" in its broadest sense would include navigable rivers and lakes, the framers of the constitution did not use the term in any such broad and extensive sense. That word in its ordinary and popular sense refers to ordinary roads and highways which are under the care of local authorities, and the term as there used has reference to highways opening through the country upon lands for the travel of the public generally.

6. In construing the provisions of the constitution, they should be construed in such a way as to give the constitution practical effect according to the intention of the body that framed it and the people who adopted it.

7. When a statute can be reasonably construed and applied in a manner to avoid conflict with the constitution, such construction will be adopted by the courts.

8. In cases of doubt as to the constitutionality of the statute, the statute must be sustained.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action for an injunction to restrain the defendant from erecting a dam in the North Fork of the Clearwater river, and to have declared unconstitutional a certain act of the legislature. Judgment for defendant. Affirmed.

Demurrer sustained. Costs awarded to respondent.

Fred E. Butler, for Appellant.

The North Fork of the Clearwater river is, and from time immemorial has been, a navigable river and a public highway. (3 Kent's Com., 3d ed., p. 432; Johnson v. Johnson, 14 Idaho 583, 95 P. 499, 24 L. R. A., N. S., 1240; Powell v. Springston Lumber Co., 12 Idaho 723, 88 P. 97; Mashburn v. St. Joe Improvement Co., 19 Idaho 30, 113 P. 92.)

When the plaintiff purchased his land, there was no law which would prohibit floating rafts to market over the North Fork of the Clearwater river, and the right to use the easement over such highway became vested in plaintiff, and he cannot be deprived of such property without just compensation. (Lockwood v. Freeman, 15 Idaho 395, 98 P. 295; 8 Cyc. 906; Lewis v. Portland, 25 Ore. 133, 42 Am. St. 772, 35 P. 256, 22 L. R. A. 736.)

D. C. McDougall, Attorney General, O. M. Van Duyn, and J. H. Peterson, Assistants, for State, as Amici Curiae.

The laws of 1887 define a highway. We do not believe, reasoning from the phraseology used in said definition, the legislature had in mind at the time of the passage of this law and definition any idea that navigable streams were highways. This for the reason that ordinarily most men do not look upon navigable streams as highways, according to their custom of viewing highways. Highways suggest to most people a road upon land for the use of men, animals and vehicles. Furthermore, the words, "laid out or erected," as used in said definition are qualified words, applied to each of the nouns in said sentence, and imply laid out and erected by human agencies. Navigable streams, on the contrary, determine in most cases exactly the reverse of human agencies. Furthermore, the words, "roads, streets, alleys or bridges," as mentioned in said definition, seem to be exclusive of any other highway, and seem to confirm and limit the word "highway" to these particular ones. Had the legislature meant that navigable streams were to be considered as highways, it is reasonable to suppose that they would have included the same in the definition of "highways."

Even in legal contemplation, we find the courts and legal writers limiting the use of the word "highway" as found in statutes and constitutions. (1 Elliott, Roads and Streets, 3d ed., c. 1, sec. 1; In re Burns, 155 N.Y. 23, 49 N.E. 246; De Camp v. Dix, 159 N.Y. 436, 54 N.E. 63; Faust v. City of Cleveland, 121 F. 810, 58 C. C. A. 194; Manigault v. Springs, 199 U.S. 473, 486, 26 S.Ct. 127, 50 L.Ed. 274.)

James E. Babb, for Respondent.

Sec. 19 of art. 3 of the constitution is not applicable to the act in question. (Manigault v. Springs, 199 U.S. 473, 486, 26 S.Ct. 127, 50 L.Ed. 274; In re Burns, 155 N.Y. 23, 49 N.E. 246; De Camp v. Dix, 159 N.Y. 436, 54 N.E. 63.)

The word "highway" was thus defined in the statutes of Idaho in force at the time of the adoption of the constitution, this provision having stood since the revision of 1887 at least:

"Highways are roads, streets or alleys, and bridges, laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the public." (Sec. 874, Rev. Codes.)

In a number of authorities cited in "Words and Phrases," under the title "Highways," the term "highways" has been held to comprehend a navigable stream or a waterway, but so far as we are able to judge from the reference to the cases contained in that work, none of them go so far as would be necessary to cover the Idaho situation. On the other hand, the precise question has been squarely decided in favor of the validity of such a statute by the court of appeals of New York in at least two cases. The first of these is In re Burns, supra. (Faust v. City of Cleveland, 121 F. 810, 58 C. C. A. 194; In re Woolsey, 95 N.Y. 135; Sears v. Steel, 55 Ore. 544, 107 P. 3; Simon v. Northup, 27 Ore. 487, 40 P. 560, 30 L. R. A. 171.)

A careful examination of the Idaho statutes shows how the term "highway" has been used in Idaho, and that waterways are not included under the statutory classification and definition of highways.

SULLIVAN, J. Ailshie, Presiding J., concurs.

OPINION

SULLIVAN, J.

This action was brought by the plaintiff, as owner of timber land adjacent to the North Fork of the Clearwater river in Nez Perce county, on behalf of himself and all other timber owners similarly situated, to restrain the defendant from erecting and constructing a dam in the North Fork of Clearwater river, without providing a sluiceway in such dam for the floating of rafts.

The complaint is quite lengthy and sets out in detail many facts, showing, among other things, that the Clearwater river flows through a rough, mountainous country; that there are four or five hundred thousand acres of land bordering on such river and its tributaries which are covered with a heavy growth of merchantable timber; that said river from time immemorial has been for forty miles above its mouth an open and navigable river for floating logs and driving rafts for more than six months out of each year, and that if said dam is constructed, it will prevent the floating of timber in the form of rafts down said river, as the plan for the construction of said dam provides for a sluiceway only ten feet wide, through which to float loose logs and other timber products.

To said complaint a general demurrer was interposed, which demurrer was sustained by the court and judgment of dismissal was entered. This appeal is from the judgment. Two errors are assigned; one to the effect that the court erred in sustaining the demurrer to the complaint, and the other that the court erred in dismissing the action and entering judgment for the defendant.

The legislature passed an act authorizing the construction of dams in the North Fork of said river, providing for sluiceways of sufficient width to permit the floating of timber in the form of loose logs, boards, etc., but not in the form of rafts, booms or brails. (Sess. Laws 1911, p. 343.) The constitutionality of said act is put in issue, and the real question is whether said act is prohibited by the provisions of sec. 19, art. 3, of the state constitution, which is as follows:

"The legislature shall not pass local or special laws in any of the following enumerated cases: . . . . Authorizing the laying out, opening, altering, maintaining, working on, or vacating roads, highways, streets, alleys, town plats, parks, cemeteries, or any public grounds not owned by the state."

It is contended by counsel for appellant that the North Fork of Clearwater river is, and from time immemorial has been, a navigable stream and a public highway; and cites Kent's Com., 3d ed., vol....