Haines v. Welch

• Decision Date: 20 December 1886
• Citation: 12 P. 502,14 Or. 319
• Parties: HAINES v. WELCH and others.
• Court: Oregon Supreme Court

12 P. 502

14 Or. 319

HAINES v. WELCH and others.

Supreme Court of Oregon

December 20, 1886

Appeal from circuit court, Union county.

J.W Shelton and Wm. M. Ramsey, for appellants, Welch and others.

Robert Eakin, for respondent, Haines.

THAYER J.

This appeal is from a judgment recovered in favor of the respondent against the appellants for the sum of $50 damages and costs of action. The case was argued and submitted to this court at the October term, 1885, thereof, and should have been decided at once, and no doubt would have been, if it had not been overlooked, and continued over with a number of undecided cases, and escaped observation in consequence. The amount of the judgment is hardly sufficient to justify an appeal, and there is no important principle involved in the case requiring any such delay in the matter.

It appears that the respondent was in possession of, and claimed to own, a tract of 160 acres of land in said Union county across which flowed a creek called "Anthony Creek;" and the appellants, in June, 1884, put a quantity of saw-logs in the creek, at a point above respondent's land, and floated them down to the point below it, where they had a mill, for the purpose of manufacturing them into lumber. The respondent claimed that appellants had no right to use the creek in that way; that it was not navigable, and that portions of the logs lodged in the bed of the stream above and on his land; portions of them were carried out of the channel onto his premises; and that, by the floating and lodging of the logs in the creek, the water thereof was dammed up, and caused to overflow its banks, and flood the premises, and deposit sediment thereon, whereby the respondent was injured in a great many ways not necessary here to enumerate. He specified the several items of damage in his complaint, alleged the extent in each particular, and they all aggregated $500.

The appellants in their answer denied almost everything in the complaint, and set up affirmatively that the creek, during its annual high stage of water, which occurred in June and July of each year, was a navigable stream, for the purpose of floating saw-logs from a point about 10 miles above the land claimed by the respondent to where it united with Powder river, a point below it, and that during such stage of high water was useful and necessary for floating timber to market that, for the purpose of procuring saw-logs for their mills during the season of 1884, it became convenient and necessary to use said Anthony creek as a public highway during the high-water season of that year for floating them from the head of navigation on said stream, through and past the lands claimed by the respondent, to a convenient point for hauling them to the mill, a distance of about 15 miles; and to that end the logs in question were put into the creek, and floated down, or attempted to be floated down, through said land referred to. The appellants also claimed a special license from respondent to float said logs through his land.

The issues were framed on both sides with great particularity but the principal point litigated in the case was whether the creek was a navigable stream or not for the purposes for which the appellants sought to use it. Unless it were so navigable, the appellants had no more right to attempt to use it in the manner they did than to attempt to appropriate any other part of respondent's farm. They could only use it in that case by obtaining the latter's consent to do so. The question, as it comes here, is a mixed one of law and fact. We could not say, as a matter of law, from what appears in the allegations and proofs, that the creek in question is a navigable stream. Whether it is so or not depends upon its capacity, extent, and importance. If it is capable of serving an important public use as a channel for commerce, it should be considered public; but if it is only a brook, although it might carry down saw-logs for a few days, during a freshet, it is not, therefore, a public highway. Cooley, Const. Lim. 589. And, even if it were public in the sense that it is useful to float...