Hot Springs Lumber & Mfg. Co v. Revercomb

• Citation: 55 S.E. 580,106 Va. 176
• Court: Supreme Court of Virginia
• Decision Date: 22 November 1906
• Parties: HOT SPRINGS LUMBER & MFG. CO. v. REVERCOMB.

55 S.E. 580

106 Va. 176

HOT SPRINGS LUMBER & MFG. CO.

v.REVERCOMB.

Supreme Court of Appeals of Virginia.

Nov. 22, 1906.

1. Navigable Waters—What Constitutes Navigability.

A stream is a navigable or floatable one If, by the increased precipitation at seasons, recurring periodically with reasonable certainty, the flow of water will be sufficient to be substantially useful to the public for transportation.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, § 9.]

2. Same—Floatage of Logs.

One floating logs in a navigable stream was not liable for injuries to a riparian owner from the piling up of the logs on his land if due and ordinary care was used to prevent injury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 251, 253; vol. 33, Logs and Logging, § 50.]

3. Same—Action by Riparian Owner—Declaration—Sufficiency.

In an action by a riparian owner against a boom company the declaration alleged that defendant carelessly and negligently permitted logs being floated by defendant in the stream to pile up on the banks in heaps or jams, which turned the water from the channel upon plaintiff's land. Held, that the declaration was demurrable in that it failed to charge facts constituting negligence.

Error to Circuit Court, Bath County.

Action by H. A. Revercomb against the Hot Springs Lumber & Manufacturing Company and another. Judgment in favor of plaintiff, and the above-named defendant brings error. Reversed and remanded.

John W. Stephenson and Geo. A. Revercomb, for plaintiff in error.

McAllister & Nelson and D. Harmo, for defendant in error.

KEITH, P. H. A. Revercomb brought an action of trespass on the case against the Hot Springs Lumber & Manufacturing Company and the Jackson & Cowpasture Boom Company, and in his declaration avers that he is the owner of lands to the water's edge on both sides of Jackson river, and that he also owns the bed of that stream; that the defendants went above the plaintiff's land on said river and cut and wrongfully put into the river a great many saw logs, for the pur pose of floating them down said river to the sawmill of the Hot SpriDgs Lumber & Manufacturing Company, which is situated below the plaintiff's land. He avers "that the said Jackson river is not a floatable stream, and was not at the time said logs were put therein, and is not a stream large enough in volume of water in its natural condition to float the logs of the defendants, placed therein as aforesaid, but was only capable of floating said logs when the river was swollen or made high by rains or melting snow, at irregular periods, all of which facts were well known to the defendants at the time they put the said logs into said river, and at the time they purchased said logs from others, which had been put in said river for the purpose of floating the same down said stream as aforesaid. And the plaintiff avers that when said logs were placed in said river by the defendants, wrongfully and illegally, to be washed or floated down said stream, and after they had purchased the logs from others, who had placed the same in said stream to be floated down the same, wrongfully and illegally, that the said river was on the —day of —, 1904 and 1905

made deep, or raised by the rains or melting snow, and washed the said logs, placed therein by the said defendants as aforesaid, and those purchased by them which had been placed in said river by others as aforesaid, down the said river, and carelessly and negligently permitted said logs to pile up on the banks of said river on the lands of your complainant in great heaps and jams, which turned the water in said river from the channel where it had been accustomed to flow, and caused the water in said river to flow out, on and against the plaintiff's land, and washed away and damaged and injured the same."

Another count of the declaration avers, in addition to the cause of action just set forth, that it was the duty of the defendants to prepare the banks of said river so as to protect the plaintiff's land from damage by said logs being piled and washed on plaintiff's land in the attempt to have the same floated or washed down said stream, as aforesaid; and plaintiff avers that it was necessary that said banks of said river should be prepared by said defendants in order to guard the plaintiff's land against damage by floating said logs. But not regarding their duty in this particular, the said defendants failed and neglected to prepare the banks of said river so as to protect the plaintiff's land from damage from said logs; that the river being swollen by rains or melting snow, the defendants carelessly and negligently permitted the said logs to be washed or floated down said river onto the lands of the plaintiff, and piled them up upon his said land and turned the water in said stream from where it was accustomed to flow, and caused it to run against the said lands of the plaintiff and wash away anddestroy the natural banks of said river where It runs through his said land, and left said

banks in an exposed condition, with nothing to protect them from damage by the continued wash of said river. And the plaintiff avers that the said damage is a continuing damage, that the said banks are continually being washed by the said river by reason of their having been left in the exposed condition as aforesaid by the said defendants, and that, in order to protect his lands from being continually washed and destroyed by said river, it will be necessary for him to construct expensive embankments or abutments or cribs along the banks of the said river which were left exposed, as aforesaid; the cost of which will be at least the sum of $2,000.

These quotations sufficiently present the aspects of the case which we deem it necessary to consider upon the demurrer which was interposed to the declaration by the defendants and overruled by the circuit court.

The question presented Is an interesting one, and, in order to determine it, we must ascertain, in the first place, what constitutes In common law a floatable stream; the subject with us not having been regulated by statute.

The contention of plaintiff in error is that for a stream to be floatable, and therefore subject to use as a highway, it is not necessary that it should possess the quality of being capable of such use during the whole year, but it is sufficient if it has water enough, as the result of natural causes, to be capable of floatage periodically during the year, so as to be susceptible of beneficial use to the public.

In Brown v. Chadbourne, 50 Am. Dec. 641, the following instruction was refused: "To constitute Little river a navigable or floatable stream, it must be shown to be capable in its ordinary and natural state of floating logs, boats, and rafts; and it is not enough to prove that logs may be carried down it at certain seasons of the year when the stream is raised by a freshet." The refusal to grant this instruction was assigned as error in the appellate court, which, in discussing the subject, says: "Those authorities, upon which reliance is placed, show nothing more than that small creeks or inlets, penetrating into marshes, and which can only be used at certain periods of the tide, and then only for a short time, or in which there is only a possibility of use, under some circumstances, at extraordinary high tides, are not navigable rivers. Such streams are incapable of any practical general use for the purpose of navigation, and they are dissimilar to the river Tinder consideration. * * * A test so rigid and severe as that required by the instruction requested would annihilate the public character of all our fresh rivers, for many miles in their course, from their sources toward the ocean. The timber floated upon our waters to market is of great value, and neither the law nor public policy requires the adoption of a rule which would greatly limit their use for that purpose. The right to the use of the stream in question must prevail, whenever it may be exercised, at any state of the water."

In Thunder Bay Booming Co. v. Speech-ley, 18 Am. Rep. 190, Judge Cooley, after stating that the possibility of occasional use during unusual and brief freshets could not make a stream a public highway, adds: "The doctrine, then, which we derive from the cases is that a stream may be a public highway for floatage when it is capable in its ordinary and natural stage in the seasons of high water of valuable public use. The inference sought to be drawn from it is that a navigable stream must, in contemplation of law, be navigable at all times, and under all circumstances; that there can be no such thing as a highway which is only open to the public use periodically, but that when once the public character of the way is established the right of the public to the easement is paramount to all private rights. * * * But no such inference is warranted by the decisions. The highway they recognize is one sui generis, and in which the public rights spring from peculiar facts. It is a public highway by nature, but one which is such only periodically and while the natural condition permits of a public use. During that time the public right of floatage and the private right of the riparian proprietors must each be exercised with due consideration for the other, and any injury which the latter receives in consequence of a proper use of the stream for floatage he must submit to as incident to his situation upon navigable waters."

In Shaw v. Oswego Iron Co., 45 Am. Rep. 154, it is said: "Nor is it essential to the public easement that such capacity continue through the year; it is sufficient if its periods of high water,...