Hubbard v. Bell

• Decision Date: 30 June 1870
• Citation: 5 Am.Rep. 98,1870 WL 6265,54 Ill. 110
• Parties: HARLOW B. HUBBARDv.JAMES BELL.
• Court: Illinois Supreme Court

54 Ill. 110

1870 WL 6265 (Ill.)

5 Am.Rep. 98

HARLOW B. HUBBARD

v.JAMES BELL.

Supreme Court of Illinois.

June Term, 1870.

WRIT OF ERROR to the Circuit Court of Union county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

The opinion of the Court contains a sufficient statement of the case.

Mr. JAMES FLETCHER, for the plaintiff in error.

The plaintiff in error, being the owner of the bed of the stream, which in its natural state is not navigable for any purpose, but only during periodical freshets, and for a few days or weeks at most, does not hold his title subservient to any public right to pass over the same. Cooper v. Bragg, 10 Wend. 264; 2 Eden on Injunc. (3d Ed.) 232, and authorities there cited; Middleton v. Pritchard, 3 Scam. 510; 3 Kent's Com. 427.

The right to pass over the the said lands of the plaintiff by the defendant, with his logs, could not arise by grant or prescription. Such right is not shown in this case, either by the pleadings or by the law. If it be either a right by grant or prescription, then in case of a grant it must have been created by deed, grant or contract of some kind; and if by prescription, the said stream must have been used by defendant for at least twenty years, none of which is shown or pretended. Town of Lewiston v. Proctor, 27 Ill. 417; 3 Kent's Com. 420; Daniels v. The People, 21 Ill. 442; Green et al. v. Oaks, 17 Ill. 251.

If a right of way is acquired by prescription, it must be uninterrupted for twenty years, and must be by the consent, or at least the acquiescence, of the owner of the land. (See the above authorities.)

The right to float said logs, etc., down said creek, can not arise from necessity; because the right of way from necessity presupposes a grant of some kind by the plaintiff to defendant, and the right of way from such grant would be necessary in order that the defendant should enjoy the thing granted. 3 Kent's Com. 420 to 425, and notes.

Mr. JACKSON FRICK, for the defendant in error.

“If a stream may be used, though only at certain seasons of the year, for floating down logs, the capacity for such use will render it subject to the jus publicum, at least for that purpose.” 3 Kent (11th Ed.) p. 538, note 4; Browne v. Chadbourne, 31 Maine, 9; Moore v. Sanborne, 2 Gibbs (Mich.) 519; Morgan v. King, 18 Barb. (N. Y.) 277; Wadsworth v. Smith, 11 Maine, 278.

The true distinction between streams which are, and streams which are not, subject to the jus publicum, is clearly given in the language of SHAW, Chief Justice: “It is not every small creek in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable. But in order to have this character it must be navigable to some purpose useful to trade or agriculture.” Rowe v. Granite Bridge Corporation, 21 Pick. 344.

“The right of public servitude in a stream depends, not upon its navigability in the common law sense of the term, but upon its capacity for the purposes of trade, business and commerce.” Morgan et al. v. King et al. 30 Barb. 9.

“The rule to be deduced from the authorities is, that any stream capable of being used in the transportation of any kind of property to market, whether in boats, rafts or single pieces, whether guided by the hand of man or floated at random on the water, is a public stream, and subject to the public easement.” Browne v. Scofield, 8 Barb. (S. C. Rep.) 243; Morgan et al. v. King et al. 30 ib. 9.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, in the Union circuit court, exhibited by James Bell against Harlow B. Hubbard, for an injunction, to restrain the defendant from creating a nuisance by felling trees into Big creek.

The case, as presented by the pleadings, is a novel one, and the claim of the defendant in error, which was sanctioned by the circuit court, is of a character so extraordinary as to challenge the most careful investigation.

The facts are briefly these: The complainant in the bill, the defendant in error here, is the owner of certain lots or blocks of ground in the town of Ullin, in Pulaski county, which front on the river Cache, and on which are erected saw mills, planing mills, and lumber yard, of which he is the owner. These structures are four miles below the mouth of a small stream called Big creek. On this creek, commencing two miles above its junction with Cache river, and in Union county, the defendant in the bill of complaint, plaintiff in error here, is the owner in fee simple of all the land on both sides of this stream for two miles up and down the creek, including the bed of the creek, on which he has a saw mill propelled by steam, and for his convenience has erected bridges across the creek at two different points, on his own land, and supplies the mill with logs by hauling and by a tramway leading from the mill to the place of deposit of the logs. The complainant obtains his supply of logs by floating them down Cache river, and some from Big creek, but from no point above the defendant's lands and mill. He, however, alleges that he has made a contract with one Phelps to cut saw logs for him on Big creek, above the lands of the defendant, which are to be floated down to complainant's mill, when the water in the creek is suitable for such purpose, it being alleged in the bill that it is only at certain seasons adapted to the floating and rafting of logs.

The charge is, that defendant felled trees, on his own land, into Big creek, near his mill, and that they were so felled to prevent the complainant from floating and rafting his logs, timber and trees down that stream, and threatens to fell other trees into the creek, and the prayer is, that the defendant be enjoined from so doing.

The defendant, in his answer, admits the principal and important allegations of the bill, and takes the position that as he is the owner of the lands for two miles on each side of the creek, together with the bed of the creek and its banks, he has the right to all the timber growing and standing on each side of the creek and on its banks, and to fell and prostrate it over and across the creek at any point over and along the creek and within the boundaries of his lands. He further admits that, in felling the trees growing on the banks of the creek, the tops and branches, and which he could not prevent, fell into the stream by the force of gravitation. He also admits that he does not wish the complainant to raft or float logs over his land, and he further avers that there is much valuable timber on his land, which overhangs the creek, which he intends to cut and fell, and the tops of which, when felled, will necessarily fall into the creek, where it will be greatly to his advantage they should remain until he is ready to work them into lumber. And, in conclusion, the defendant protests against the right claimed by complainant to the use of defendant's land and water as a highway, or as a channel through and by which to float or raft logs to complainant's mill; that he has at no time given complainant permission so to use his land and water, and has informed complainant he would prevent it, if he could; and he further says, in his answer, that by using the stream of the creek when suitable for floating, complainant will destroy the bridges erected across the creek, and he avers that Big creek is not a navigable stream, and denies that complainant has any right of way over the same, through and over the lands of the defendant.

On this answer, sworn to, the oath not having been waived, the defendant moved to dissolve the injunction, which motion was overruled, and the cause set for hearing on the bill and answer, no replication having been filed by the complainant, and on such hearing, without any proofs, the injunction was made perpetual.

To reverse this decree, the record is brought here by writ of error.

The pleadings establish the fact that Big creek is not a navigable stream, and by the common law it belongs, its banks and bed, to the riparian proprietors, of whom the plaintiff in error is one to the extent of two miles up and down the stream.

The precise character of this stream is not stated, nor does it appear anywhere in the record. Its length, breadth, or dimensions of its bed above its confluence with the river Cache, are undisclosed, nor have we any means of ascertaining the ordinary volume of water contained in the bed, or its quantity during freshets. We are led to infer, from what is stated, that it is an inconsiderable stream, nearly or wholly dry in the summer season, and carrying a volume of water sufficiently powerful to float logs or rafts only in seasons of freshets, and then for a few days or weeks only. The beds of all such streams we know judicially, have been surveyed by the government of the United States, and sold, and on which the the purchasers or their assigns pay an annual tax to the State, besides local assessments made upon them. They are, to all intents and purposes, private property. Being so, the question is presented by the plaintiff in error, and it arises on the record--indeed it is the only question of any magnitude in the case, is this private right subservient to the public use?

As preliminary, it may be stated that it does not appear, by this record, that Big creek was ever used, at any season, above the lands of the plaintiff in error, for the purpose of floating rafts or logs. The allegation is, that Phelps was employed to cut logs, and had a portion of them in the creek, ready for floating. The natural capacity of the stream for floating, above the lands of plaintiff in error, does not appear to have been ascertained, and there is no evidence it has ever been used for that purpose.

The defendant in error starts with this proposition: If a stream may be used, though only at certain seasons of the year, for floating logs, the capacity for such use will render it subject to the jus publicum, at least for that purpose.

For this, defendan...