Haines v. Hall

• Decision Date: 19 December 1888
• Citation: 20 P. 831,17 Or. 165
• Parties: HAINES v. HALL.
• Court: Oregon Supreme Court

20 P. 831

17 Or. 165

HAINES v. HALL.

Supreme Court of Oregon

December 19, 1888^[1]

Appeal from circuit court, Union county.

Action by W.F. Haines against Thomas Hall. Defendant appeals.

(Syllabus by the Court.)

The doctrine that a stream of water is navigable, if of sufficient extent and capacity to float logs and timber from mountainous regions to market, and may thereby be utilized for the benefit and advantage of the community at large cannot be extended so as to include small stream of only a few miles in length, although they rise during a few weeks in the year sufficiently high to be used to a limited extent, by the application of artificial means, to float logs and timber a short distance.

Equity will not take cognizance of an ordinary matter of trespass or of the violation of any legal right, unless the circumstances are of such a character as to bring the case under some recognized head of equity jurisdiction. Equity will, however, afford a remedy in such cases where the remedy at law is incomplete and inadequate to give such relief as the nature of the case demands.

Where a small stream of water, only about 20 feet in width where confined within its banks, and about 35 in other places, ran across the farm of W. f. H. and emptied into another stream two miles below, which, during four or five weeks in the year, increased in volume, by the melting of snows in its vicinity, sufficiently to enable T. H. to float logs down it by stationing a larger number of men along its banks "to break jams," by arranging logs along the stream so as to confine the water in a narrower channel at points where the banks were not sufficient to prevent its spreading out, and by constructing reservoirs above, and opening them so as to make a greater flow in a given length of time, held, that the stream was not navigable in the sense which made it a public easement.

And Where it appeared that the attempted use by T. H. of the stream as mentioned resulted in destroying its banks extending it in width, in diverting its waters from the channel, and causing them to overflow the land of W. F. H., which was in cultivation, and wash off the soil of a material part of his lands, and that T. H. claimed the right, and threatened to continue such practice, and it further appearing that W. F. H. had already sued a former party in an action at law for attempting to exercise a similar right, and had recovered the sum of $50 as damages on account thereof, held, that equity should interfere and prevent T. H. from carrying his threats into execution.

Strahan, J., dissenting.

ON MOTION FOR REHEARING.

A stream which has floatable capacity at certain periods, recurring with regularity, and continuing a sufficient length of time to make it useful as a highway for floating logs, is navigable; but to be navigable in this sense it must be capable of such floatage as is of practical utility and benefit to the public as a highway for trade and commerce.

Where the facts show that a stream is not navigable for floating logs without doing irreparable injury to the estate through which it flows, and the defendant claims a right to use such stream for that purpose, not only for himself, but for the public, and threatens to commit and claims the right to repeat the numerous trespasses which the exercise of such right necessarily involves, held, that the plaintiff was entitled to an injunction to prevent to prevent irreparable injury, and to avoid a multiplicity of suits.

Baker, Shelton & Baker and G.G. Bingham, for appellant.

R. Eakin & Bro., for respondent.

THAYER, C.J.

This appeal is from a decree rendered in a suit brought by the respondent against the appellant to enjoin the latter from floating logs down what is known as "Anthony Creek," and to have an account taken of damages done to respondent's premises in consequence of the appellant using, and attempting to use, said creek during the years 1886 and 1887. The respondent owns two 40-acre subdivisions of land, situated partly in Union and partly in Baker counties, upon which he has resided for some time, using them as a farm. The creek is a small stream, running through the land, down which the appellant claims and exercises the right of floating saw-logs during its highest stages of water insisting that it is a navigable stream. The respondent denies its being navigable, and alleges that the appellant is doing irreparable injury to his land in attempting to use it for such a purpose. He also alleges that the appellant threatens to and will, unless restrained by the court, continue to use said stream, and that he has already suffered damages to a large amount, occasioned by the acts of the appellant in that particular. The respondent sought by his suit to have decided a question which is more within the province of a jury to determine than that of a court. But the right to run saw-logs down this Anthony creek has heretofore caused litigation. The case of Haines v. Welch, 14 Or. 319, 12 P. 502, arose out of a claim to damages in consequence of using it for such purpose, and the circumstances surrounding it are of a character that would indicate that it is liable to be a source of constant contention. Besides, the circuit court seems to have thoroughly investigated the affair, and given it a candid and judicious consideration. I think, therefore, it will be better for all parties to entertain jurisdiction of the case, and make a final disposition of it.

The respondent may have been captious in regard to the use of the stream by the appellant, but the land belonged to him, creek and all, and the appellant had no right to attempt to run his logs down the creek unless its capacity was such as to render it capable of serving an important public use as a channel of commerce. The case is not one of casual trespass, but it is one where a right is claimed which it is apparent will be attempted to be exercised continuously; and if the creek, as a matter of law applicable to the facts proved, is not a public easement, the appellant should desist from attempting to run his logs down it, and the respondent have the right to enjoy his premises unmolested. The right to acquire private property is said by Blackstone to belong inherently to every one, but it would be of little value if a party were not allowed to enjoy it free from disturbance. The circuit court, in its findings, found as follows: That the respondent was, and for nine years past had been, the owner in fee of the land; that it was inclosed by a fence, had a dwelling-house and out-buildings thereon, was occupied by respondent as a home, and had been used by him for general agricultural purposes during his ownership; and that it was of the value of $1,800. That Anthony creek entered said land at or near the north-west corner, and ran in a south-easterly course, and passed out near the south-east corner, being a distance of about three-fourths of a mile, considering the sinuosity of the stream. That it entered North Powder river a short distance below where it left the respondent's land. That the creek on the respondent's land, and for a mile and a half above there, is a small, shallow, rapid, crooked stream, with a general width of 20 to 35 feet, as it appeared in 1886, having banks from 18 to 35 inches high, but which frequently fell away on one, and sometimes on both, sides, leaving nothing but a gravel bar for many feet with little or no bank at all. The flow of water in the creek during the previous summer and fall was very limited, not exceeding 20 or 30 inches, miners' measure, but usually during the latter part of May and first of June, the melting snows in the mountains near by cause the water to increase until the banks, in narrow places, are nearly full; but where the banks are broken away on one or both sides, the water, unless confined by artificial means, spreads out until it becomes a depth of not more than 16 or 18 inches, even in high water. The annual rise of the water is fairly regular in amount, time, and duration of occurrence. That the banks of the creek on the respondent's land are composed largely of black loam, which washes readily when disturbed in any manner. That the width of the stream did not increase materially for 10 years prior to the spring of 1885, but since that time it has increased one-third. That in the spring of 1886 appellant deposited in the bed of the creek, at a point about one and a quarter miles above the respondent's land, about 1,000,000 feet of saw-logs, and attempted to float them to a point below said land. That 18 men were engaged for 25 days in getting these logs to float, during the highest water of the season, but the attempt was an utter failure. Few, if any, of the logs passed respondent's land at all, the drive being less than two miles; and that there was no evidence showing that the flow of water in that year was less than usual. That no attempt was ever made to float logs in the stream prior to 1883, and the attempts made in 1884 and 1885 were slight and unsuccessful. That in the spring of 1887 the appellant deposited in said creek, about a mile and a quarter above the respondent's land, 2,300,000 feet of saw-logs, for the purposes of floating them to a point below said land. That only1,400,000 feet of these logs, and of the 1,000,000 feet placed in the stream in 1886, and of an unknown quantity placed there prior to that time, ever reached their destination, a point about seven miles below where they were started; and that in order to secure such result the appellant employed, on two miles of the creek, and stationed along the bank, from 25 to 35 men with cant-hooks and other appliances to prevent the logs from lodging, to roll them back into the stream, drag them over gravel...