Kamm v. Normand

• Decision Date: 20 August 1907
• Citation: 50 Or. 9,91 P. 448
• Parties: KAMM v. NORMAND et al.
• Court: Oregon Supreme Court

91 P. 448

50 Or. 9

KAMM v. NORMAND et al.

Supreme Court of Oregon

August 20, 1907

Appeal from Circuit Court, Clatsop County; T.A. McBride, Judge.

Suit by Joseph Kamm against Alex Normand and others, to restrain defendants from using a certain stream for the flowage of saw logs. From a decree in favor of plaintiff, defendants appeal. Reversed and rendered.

This is a suit to enjoin defendants from using the North Fork of Klaskanie creek for floating saw logs. The complaint alleges that the stream in question runs through plaintiff's land for a distance of about one-half mile, and that it is not navigable or floatable for rafts, logs, lumber, or timber that the defendants cut and put into the channel above plaintiff's premises large quantities of saw logs, and in order to cause them to float down such stream, constructed a splash dam, whereby a large volume of water was accumulated and suddenly released and permitted to flow down the stream forcing the logs on plaintiff's land in great numbers cutting and breaking the banks, and otherwise damaging his premises; and that, unless enjoined and restrained, defendants will continue to so use the stream, to plaintiff's irreparable damage. Defendants admit, by their answer, that they are engaged in the logging business on the stream above the lands of plaintiff, and that they have constructed therein a splash dam for use in their logging operations. But they allege that the stream is navigable and suitable for the floatage of saw logs and other timber products where it runs through, and for several miles above, plaintiff's lands; that they are the owners of large tracts of valuable timber lands on the stream, and the only way the timber can be marketed is by floating it down such stream; that the stream is not navigable at all stages of the water, but has well-defined banks on either side; that in October, 1903, they constructed, at great expense, about two miles above the premises of plaintiff, a splash dam for the purpose of aiding and assisting the floatage of logs; that such dam is so constructed and operated as to be a benefit to plaintiff, since it is possible thereby to control the water and prevent it from overflowing the banks or reaching the height of ordinary freshets; and that logs floated down stream by use of the dam do less injury to plaintiff's premises than if floated without such dam. Upon a trial the court found the averments of the answer to be substantially true, and dismissed the suit, and plaintiff appeals.

J.M. Gearin and Frank J. Taylor, for appellants.

C.E.S. Wood and G.C. Fulton, for respondent.

BEAN, C.J. (after stating the facts).

The questions for determination on this appeal are: (1) Whether the Klaskanie, where it flows through the lands of plaintiff is a navigable or floatable stream; (2) to what extent, if any, the defendants may render it navigable or assist the navigability thereof by means of a splash dam.

The common law of England, that the only streams which are navigable are those in which the tide ebbs and flows, has never been adopted in this country. Rules which reason and convenience may have approved in reference to the streams of that country are wholly inapplicable to our waterways, natural resources, and conditions, and it is now considered here that any stream which can be used in its natural state for commercial purposes is navigable. The existence of immense bodies of timber in Maine, Michigan, and other states, which could be transported to market only by use of adjacent streams, influenced the courts to early hold that any stream which is capable in its natural condition of being commonly and generally used for floating saw logs at periods of high water is navigable or floatable for the transportation of the timber along its banks. This doctrine has been accepted and declared by this court, and the courts of this country generally, until now it may be regarded as settled that streams, which in their natural condition are useful for the transportation of saw logs during the whole or part of each year, are highways for that purpose. Brown v. Chadbourne, 31 Me. 9, 1 Am.Rep. 641; Moore v. Sanborne, 2 Mich. 520, 59 Am.Dec. 209; Weise v. Smith, 3 Or. 445, 8 Am.Rep. 621; Shaw v. Oswego Iron Co., 10 Or. 371, 45 Am.Rep. 146; Haines v. Welch et al., 14 Or. 319, 12 P. 502; Haines v. Hall, 17 Or. 165, 20 P. 831, 3 L.R.A. 609; Nutter v. Gallagher, 19 Or. 375, 24 P. 250; Hallock v. Suitor, 37 Or. 9, 60 P. 384; 27 Cyc. 1566; 21 Am. & Eng.Ency. 428. But streams which are not of sufficient size and capacity to be profitably so used are wholly and absolutely private. Munson v. Hungerford, 6 Barb. (N.Y.) 265; Wadsworth v. Smith, 11 Me. 278, 26 Am.Dec. 525. "The true test, therefore to be applied in such cases," says the Supreme Court of Maine, in Brown v. Chadbourne, supra, "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." It is not necessary that the stream should be floatable at all seasons of the year. It is sufficient if it has that character at different periods, recurring with reasonable certainty, and continuing for a sufficient length of time to make it commercially profitable and beneficial to the general public. But every small creek or rivulet in which logs can be made to float for a few hours during a freshet is not a public highway. To make a stream a highway, it must at least be navigable or floatable in its natural state, at ordinary recurring winter freshets, long enough to make it useful for some purpose of trade or agriculture. People v. Elk River M. & L. Co., 107 Cal. 221, 40 P. 531, 48 Am.St.Rep. 125; Rowe et al. v. Granite Bridge Corp. 21 Pick. (Mass.) 344; Morgan v. King, 18 Barb. (N.Y.) 277; Id., 35 N.Y. 454, 91 Am.Dec. 67; Banks v. Frazier, 64 S.W. 983, 111 Ky. 909; Commissioners of Burke Co. v. Catawba Lumber Co. et al., 115 N.C. 590, 20 S.E. 707, 847; Lewis v. Coffee Co., 77 Ala. 190, 54 Am.Rep. 55; bard v. Bell,

54 Ill. 110, 5 Am.Rep. 98; Carlson v. St. Louis River Dam & Improv. Co., 73 Minn. 128, 75 N.W. 1044, 72 Am.St.Rep. 610, 41 L.R.A. 371 (note); 1 Farnham on Waters, 121; Gould on Waters, §§ 107-109. "The true rule is,"says the Supreme Court of New York, in Morgan v. King, supra, "that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines or of the tillage of the soil upon its banks. It is not essential to the right that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance. Nor is it necessary that the stream should be capable of being thus navigated against its current, as well as in the direction of its current. If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported. Nor is it essential to the easement that the capacity of the stream, as above defined, should be continuous or, in other words, that its ordinary state at all seasons of the year should be such as to make it navigable. If it is ordinarily subject to periodical fluctuations in the volume and height of its water, attributable to natural causes, and recurring as regularly as the seasons, and if its periods of high water or navigable capacity ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement. These general views are in harmony with those maintained by the Supreme Court of Maine in Brown v. Chadbourne, 31 Me. 9, 1 Am.Rep. 641, and by the Supreme Court of Michigan, in Moore v. Sanborne, 1 Gibbs, 519." And this is the rule adopted in this state. In Weise v. Smith, supra, it is said "that if a stream is in fact capable, in its natural condition, of being profitably used for any kind of navigation, its use is to that extent subjected to the general rules of law relating to navigation applicable to the circumstances of the case." And in Haines v. Welch, supra, Mr. Justice Thayer says: "If it [Anthony creek] 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." And in Haines v. Hall, supra, in speaking of the same stream, the court said: "Whether the creek in question is navigable or not for the purposes for which the appellant used it depends upon its capacity in a natural state to float logs and timber, and whether its use for that purpose will be an advantage to the public. If its location is such and its length and capacity so limited that it will only accommodate a few persons, it cannot be considered a navigable stream for any purpose. It must be so situated as to have such length and capacity as will enable it to accommodate the public generally as a means of transportation."

The doctrine then, which we derive from the authorities is that a stream, to be a public highway for floatage, must be capable, in its natural condition and at the ordinary winter stages of water, of valuable public use, and, if not, it is private property. Ordinary stages of water or natural conditions, within this rule, do not mean a continuous state of floatage or an average volume of water. The term has reference to the natural flow of the water, and is applied to the stream in its natural condition, without the application of artificial means, and is used in contradistinction...