Idaho Northern R. Co. v. Post Falls Lumber & Mfg. Co.

• Decision Date: 04 December 1911
• Citation: 20 Idaho 695,119 P. 1098
• Parties: IDAHO NORTHERN RAILROAD CO., Respondent, v. POST FALLS LUMBER COMPANY, Appellant
• Court: Idaho Supreme Court

119 P. 1098

20 Idaho 695

IDAHO NORTHERN RAILROAD CO., Respondent, v. POST FALLS LUMBER COMPANY, Appellant

Supreme Court of Idaho

December 4, 1911

NAVIGABLE STREAM-NAVIGABILITY DEFINED-FLOATING OF LOGS-DAMAGES CAUSED BY FLOATING OF LOGS-BRIDGING NAVIGABLE STREAMS.

(Syllabus by the court.)

1. Any stream in this state is navigable on which logs or timber can be floated to market or the place of use, and to that extent and for that purpose is a public highway; and it is not necessary that such stream be navigable the whole year for such or any purpose. It is sufficient if during the high-water season such stream can be used for the floating of logs and timber, and the question of navigability for such or any useful purpose is a question of fact to be determined in the same manner as any other question of fact is determined.

2. If a stream is in fact navigable or floatable, the question as to whether or not logs, lumber or other floatable materials may be profitably transported by means of such watercourse is a question that should be left in a large measure to the person who undertakes the enterprise, and the chief question to be determined by a court in such a case is the question of navigability in fact, while the question as to whether it can be done profitably is one that will depend largely upon the condition and circumstance of the person who undertakes the enterprise, and to him it may be both practicable and profitable while to another differently situated it might be unprofitable.

3. In the new and undeveloped condition of this state, and in view of the circumstance that large areas of the state's forest and mineral wealth have not been opened or developed proof that a stream flowing through such territory has never before been utilized for the floating of logs or other materials should have but little or no weight in determining the fact of the navigability or floatability of such streams.

4. One who undertakes to utilize a stream for the floating of logs lumber or other material must do so having due and proper regard for the interests and property rights of others along such stream, and must exercise care proportionate to the natural conditions of the stream, the dangers and difficulties of the undertaking and the liability of inflicting injury upon others.

5. Where a railroad company builds its grade and track along the course of a stream, crossing it from time to time and utilizing a bank of the stream for its grade, it is chargeable with notice of the navigability of such stream for the floating of logs and other articles of commerce and of the natural conditions of the country and the fact that the stream is subject to periods of high water, freshets and floods, and must so build its grade and road as not to unreasonably impede or obstruct the navigation of such stream, and in so doing it must take notice of the fact that floatable commodities are liable at times to strike the banks of the stream and cause abrasions of the bank, and must accordingly guard and protect its roadbed built along such banks.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action for damages and perpetual injunction. Judgment for the plaintiff and defendant appealed. Reversed.

Reversed and remanded. Costs awarded in favor of appellant. Petition for rehearing denied.

McBee & La Veine, and Phil Averitt, for Appellant.

Respondent was bound to take notice that Eagle and Prichard creeks could be rendered navigable by the removal of a few stumps and fallen timbers before occupying the channel of said Prichard creek. (Olson v. Merrill, 42 Wis. 203; Moore v. Sanborne, 2 Mich. 520, 59 Am. Dec. 209; Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L. R. A., N. S., 1240.)

The test to be applied in such cases is, whether a stream is inherently and in its nature capable of being used for the purposes of commerce for the floating of vessels, boats, rafts or logs. (Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Morgan v. King, 35 N.Y. 454, 91 Am. Dec. 58; Hooper v. Hobson, 57 Me. 273, 99 Am. Dec. 769.)

"A stream capable of floating logs and timber to market is a navigable stream." (Hallock v. Suitor, 37 Ore. 9, 60 P. 384; La Veine v. Stack-Gibbs Lbr. Co., 17 Idaho 51, 134 Am. St. 253, 104 P. 666.)

"The fact that a floatable stream has not been used by the public but has only been used by persons following a particular occupation cannot deprive such stream of its public character." (Moore v. Sanborne, supra.)

"It is sufficient if it appear that business men may calculate that, with a tolerable regularity as to season the water will rise to and remain at such a height as to make it profitable as a highway for transporting logs to mills and markets lower down." (Commrs. of Burke County v. Catawba Lumber Co., 116 N.C. 731, 47 Am. St. 829, 21 S.E. 941.)

The legislature must be presumed to have had all the natural growth and development of the timber industry in view when they enacted section 2798, Rev. Codes, authorizing the construction of bridges over streams in this state. (Dugan v. Bridge Co., 27 Pa. 303, 67 Am. Dec. 464.)

Had respondent properly constructed its bridge and right of way and kept out of the channel of Prichard creek, its right of way would not have been destroyed. (Edwards v. Missouri K. & E. Ry. Co., 97 Mo.App. 103, 71 S.W. 366.)

"In building dams or other embankments or structures into the bed of the stream, so as to impede or interfere with the flow of the stream, the party who does so acts at his peril." (Fischer v. Davis, 19 Idaho 493, 116 P. 412.)

In Idaho, the use and navigation of our streams has been sedulously guarded by both legislative action and judicial decisions. (Secs. 837 and 2798, Rev. Codes; Powell v. Springston Lumber Co., 12 Idaho 723, 88 P. 97; La Veine v. Stack-Gibbs Lumber Co., supra.)

Franklin Pfirman, and W. A. Cleland, for Respondent.

While this court has been liberal in applying the rule that a stream that can be profitably utilized for floating logs is a navigable stream, yet in no case has it gone so far as to say that a stream that cannot be used without improvement is navigable. (La Veine v. Stack-Gibbs Lbr. Co., 17 Idaho 51, 134 Am. St. 253, 104 P. 666; 1 Farnham on Waters, sec. 77, p. 365; East Branch etc. Co. v. White etc. Lumber Co., 69 Mich. 207, 37 N.W. 192.)

"The navigation right does not include the right to interfere with the bed of the stream. Rocks and natural obstructions cannot be removed." (1 Farnham on Waters, sec. 29a.) This is in navigable streams; much less is there any such right in a stream which is not in fact navigable. (Haines v. Hall, 17 Ore. 165, 20 P. 831, 3 L. R. A. 609.)

A stream to be navigable in this sense must be capable of such floatage as is of practical utility and benefit to the public as a highway for trade. (Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439.)

"The one who claims the stream to be navigable has the burden of proving that it is in fact susceptible of valuable use for commercial purposes in its natural state, unaided by artificial means and devices." (1 Farnham on Waters, sec. 26, citing numerous cases.)

This court has heretofore considered and adjudicated the rights of respective parties as to the use of navigable streams. (Small v. Harrington, 10 Idaho 499, 79 P. 461; Grice v. Clearwater Timber Co., ante, p. 70, 117 P. 112.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from the judgment and order denying a motion for a new trial. The respondent, the Idaho Northern Railroad Co. is an Idaho corporation, and has constructed and is operating a line of road from a point near the junction of the north and south forks of the Coeur d'Alene river in Shoshone county up the north fork of the Coeur d'Alene river to its confluence with Prichard creek and thence up Prichard creek to the mouth of Paragon gulch. Prichard creek is a tributary of the north fork of the Coeur d'Alene river and flows through a mineral and timber section of Shoshone county. It appears that a great deal of placer mining has been done for many years along the course of Prichard creek and Eagle creek, which is a tributary to Prichard creek and flows into Prichard creek at a point near the respondent's line of track. The railroad track is built along the canyon through which Prichard creek at a point near follows the stream, at some points being constructed in what was formerly the bed of the stream and at other places crossing the stream, and at still other points following along one of the banks of the stream. By reason of having built the road along the stream and at some places in the bed of the stream, it was necessary for the railroad company to cut new channels and straighten the course of the channel so as to give the water free passage and protect the railroad property. Between the mouth of Eagle creek and the mouth of Prichard creek the railroad company constructed two bridges. These bridges are constructed (according to the court's finding No. 14) "of piling arranged in rows or bents parallel to the banks of the stream at said points, the piling being about one foot in diameter and the bents 15 ft. from center to center. There are eleven bents to each bridge providing 140 ft. of clear space at each bridge for the passage of water." It seems that as a result of many years placer mining along Prichard creek the ancient channel of this stream has been in a great measure filled up with gravel and debris and that at places there is no very well defined bed or channel to the stream, the sand and gravel and debris having so filled up the depressions that when the high-water season comes the water spreads out over a considerable space and...