Gwaltney v. Scottish-Carolina Timber & Land Co.
| Decision Date | 23 December 1892 |
| Citation | 16 S.E. 692,111 N.C. 547 |
| Parties | GWALTNEY v. SCOTTISH-CAROLINA TIMBER & LAND CO., Limited. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; PHILIPS, Judge.
Action by Jesse A. Gwaltney against the Scottish-Carolina Timber & Land Company for injuries to plaintiff's dam caused by logs belonging to defendant. From a judgment of nonsuit plaintiff appeals. Reversed.
In an action for injuries to plaintiff's dam, caused by logs belonging to defendant corporation, it did not appear that the part of the stream just above the dam had ever been used for floating logs until so used by defendant, and one witness stated that it was not capable of floating logs unless there was a freshet. Held, that it was error to take the case from the jury on the ground that there was no evidence to show that at that point the stream was not a floatable one.
Thos A. Jones and T. F. Davidson, for appellant.
Chas A. Moore, for appellee.
At the close of the testimony his honor intimated an opinion "that, assuming the facts testified to be true, the plaintiff was not entitled to recover;" and thereupon the plaintiff submitted to a nonsuit, and appealed. The question in issue was whether the French Broad river, from Asheville down to the plaintiff's dam, was a floatable stream. There was testimony relating to the character of the river above Asheville, and also variant, if not conflicting, testimony as to its floatable capacity below that city. It would be difficult, therefore, to ascertain upon what facts his honor based his ruling, unless we consider that he meant that in no aspect of the testimony could the plaintiff maintain his action. This, of course, is the view which we must take, and it is our duty to base our judgment upon that testimony which is most favorable to the plaintiff. We are not permitted to attempt a reconciliation of the testimony, so as to make out a case for the defendant, but we should examine it with the opposite view, of ascertaining whether there is any evidence which tends to sustain the plaintiff's action. Gould, P1. c. 9, § 65; Knight v. Railroad Co., 14 S.E. Rep. 650, (decided at this term;) Bond v. Wood, 107 N.C. 146, 12 S.E. Rep. 281.
Now, the plaintiff's dam having been injured by the logs of the defendant, as stated by the witnesses, it was incumbent upon the latter to show that the river was a floatable stream at the point where the injury was inflicted; and if it has failed to do this the plaintiff is entitled to recover. It is said that "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 the season, the water will rise to and remain at such a height as will enable them to make it profitable to use it as a highway for transporting logs to market or mills lower down." Accepting this as a correct proposition of law, we are unable to see how the defendant has brought itself within its terms. It appears from the testimony of R. B. Justice that the water "above Asheville is stiller or deeper;" and, while it is stated by the witness Wilkerson that the river has been used for floating logs for 15 or 20 years, he expressly testifies, upon further examination, that the statement was made in reference to the river above Asheville. It is apparent from the testimony of the witness Wilkerson that all of his floating was done above Asheville, and he does not show that there has been any floating of logs below that place, except what has been done by the defendant; and as to this he does not state how long the defendant has been so using the river, or its condition when the floating was done. It is perfectly consistent, therefore, with the testimony of the witness Zachary, who says that he and his brother, between the 1st of December, 1887, and the 1st of May, 1888, put logs in the river for the defendant, to go to its mill in Knoxville, Tenn. The witness Garret testifies that prior to the organization of the defendant no logs were floated down the river from Asheville. So, taking all of the testimony, we have nothing which expressly shows that the river below Asheville was ever used by any one for floating logs except during the six months mentioned by Zachary, and for aught that appears the floating may have been done in time of extraordinary freshets. Neither is there any definite testimony as to the character of the river below Asheville, as it is by no means certain whether Zachary's testimony on this subject does not refer to some point above that place, where he seems to have resided, and where he worked, as testified, for the defendant. When we add that it is stated by one of the witnesses that the river "is not capable of floating logs unless there is a freshet," it would seem that the defendant has failed to bring itself within the principles above mentioned. How can it be said, upon such testimony, that "business men may calculate that, with tolerable regularity as to the season," the water below Asheville can be profitably used for the floatage of logs? An ingenious advocate might possibly induce a jury to come to such a conclusion, but it is very certain that this court has no right to do so; and especially is this true when we consider that it is our duty, not to determine whether there is any evidence to sustain the defense, but whether there is any possible view of the testimony upon which the plaintiff may recover. As we have indicated, it must be assumed that the plaintiff has suffered injury at the hands of the defendant; and, the river not being a navigable stream, it is incumbent upon the defendant to establish that it is floatable, within the legal meaning of that term. This being so, we cannot see how the case could have been taken from the jury. It is true that the plaintiff cannot contradict his own witnesses, but as we have seen, taking all that they testify to be true, it is doubtful whether it makes out a case for the defendant, and it is very certain that if we take the view most favorable to the plaintiff, he is entitled to recover. There being some testimony tending to sustain the action, we think that we should simply grant a new trial, without attempting to pass upon the very important questions discussed by counsel.
Conceding that this is a floatable stream, (and we think there is testimony tending to show that it is,) another serious question to be determined is whether the right to float logs must not be exercised with reference to the rights of riparian proprietors. To sustain the nonsuit in this case would, we fear, be construed as an indication that the right of floatage is paramount to all other interests, and we are not prepared to assent to such a proposition. However this may be, we think the facts should either be ascertained, or that there should either be ascertained, or that there should be instructions clearly presenting the questions to be determined. Until this is done, we should refuse to decide questions involving such grave consequences to a large number of citizens owning property on the said river. Error.
BURWELL, J. I concur in the opinion of the chief justice.
His honor held that, assuming the truth of the facts testified to, the plaintiff was not entitled to recover, whereupon the plaintiff submitted to a nonsuit and appealed. This makes it necessary for us to consider the evidence in the most favorable light to the plaintiff, and determine whether he had entirely failed to make out his case, or was there sufficient evidence to have been submitted to the jury, upon proper issues, before the judgment of the court could be pronounced? No issues seem to have been framed, but several interesting questions must have been presented to the jury, if, in the opinion of the presiding judge, the evidence had called for their consideration. Upon the main issue, whether the plaintiff's dam and fishery had been destroyed by the negligence of defendant, as alleged in the complaint, there arose questions which might have been framed into other issues, or comprehended in that which has been indicated as the principal one arising upon the pleadings. After having ascertained from the evidence whether the plaintiff, as he alleged, was the owner of land upon the banks of the French Broad river, and in the possession of valuable erections in the stream used by him as a fishery, it would have been necessary for the jury to have ascertained the character of the stream,--whether the same is such a stream as is capable of being used for floating rafts, boats, and logs, and is in this sense a navigable stream, and subject to the public use as a public high way and easement, as alleged in the answer. It is purely a question of fact, dependant upon the capacity of the stream, the products of the country, and the profitableness or unprofitableness of its use in that manner. Wood, Nuis. (2d Ed.) § 464.
The leading case on the subject of the law of water courses in North Carolina is State v. Glen, 7 Jones, 321, in which the late Judge BATTLE, in a very able opinion discussed the rights of the public, and of the riparian owners, and of the owners of the beds of these streams. He divides them into three classes: (1) All bays and inlets on the coast, where the tide ebbs and flows, and all other waters which can be navigated by sea vessels, are navigable waters,publici juris not confining them to the criterion of ebb and flow which obtains in England. (2) All the rivers, creeks, and other water courses not embraced in the above description, but which are in fact sufficiently wide and deep to be navigable...
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