McKinney v. Northcutt

• Decision Date: 30 September 1905
• Citation: 89 S.W. 351,114 Mo. App. 146
• Parties: McKINNEY v. NORTHCUTT et al.
• Court: Missouri Court of Appeals

89 S.W. 351

114 Mo. App. 146

McKINNEY v. NORTHCUTT et al.

St. Louis Court of Appeals. Missouri.

September 30, 1905.

1. APPEAL—REVIEW—FINDING OF CHANCELLOR.

A suit to restrain the obstruction of an alleged navigable stream being a suit in equity, the appellate court, though not bound by the chancellor's finding on questions of fact, will nevertheless defer somewhat thereto, where the witnesses testified orally on the issues before the chancellor.

2. SAME—RECORD—EVIDENCE.

A chancellor's finding of facts in an equity suit will not be reviewed on appeal, where appellant has failed to incorporate all the evidence in the record.

3. NAVIGABLE WATERS—WHAT CONSTITUTES NAVIGABILITY.

Where a creek in its natural state and for a large part of the year had sufficient water to float rafts of railroad ties without requiring the raftsmen to use the banks of the stream, it was navigable.

4. SAME—RIGHTS OF RIPARIAN OWNERS.

Owners of land along a stream navigable for the purpose of floating railroad ties are not entitled to either obstruct the stream, or interfere with the floatage of such ties by persons desiring to use the stream for that purpose.

5. EVIDENCE—JUDICIAL NOTICE—NAVIGABILITY OF STREAMS.

While courts will take judicial notice of the navigability of all tide water and of particular rivers of the country on which navigation is conducted as a matter of common knowledge, the question whether or not a stream is navigable for the purpose of floating logs, railroad ties, etc., is ordinarily a question of fact, the burden of establishing which rests on the party affirming it.

6. PLEADING—OBJECTIONS—WAIVER.

Defendants having answered over and gone to trial, all objections to the sufficiency of the petition were thereby waived, save its sufficiency to support the judgment.

7. SAME—DEFECTS CURED BY VERDICT.

Where material matter omitted from the petition was necessarily implied from what was stated therein, the defect was cured by verdict.

Appeal from Circuit Court, Washington County; Frank R. Dearing, Judge.

Action by C. P. McKinney against W. S. Northcutt and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

Plaintiff is a tie contractor. He buys timber and employs men to work it into railroad cross and switch ties, which ties are made into rafts and floated down Indian creek, in Washington and Franklin counties, to the Meramec river, and thence down the Meramec to market. This suit is a proceeding by injunction. The bill alleges in substance the facts above stated, and that the four defendants own severally four farms through which said Indian creek flows; that at all times, especially in March, April, May, and June of each year, said creek, in its natural state and condition, is fit, useful, and capable of being used for rafting railroad cross and switch ties; that while the plaintiff was prosecuting his business of rafting, etc., the four defendants wrongfully agreed and conspired together for the purpose of wrongfully extorting money from the plaintiff—that is, defendants wrongfully entered into an agreement among themselves not to allow the plaintiff to raft his said ties down said stream where it passes through the several farms owned by defendants, unless plaintiff first compensated defendants for the privilige of so doing; that in furtherance of said conspiracy the defendants cut and felled a large number of trees into the said creek on their respective farms at a point where plaintiff was compelled to pass with his said rafts, and thus prevented his use of said stream without first removing said felled timber from the waterway; that defendants forbade plaintiff, his servants, and agents from so removing said timber, and threatened to cause the arrest of plaintiff and his servants, or any of them, if they attempted to remove said felled timber from said creek; that on April 26, 1903, while plaintiff by his servants and agents was floating a raft of 441 ties down said creek to Pacific, Mo., the same was caused to halt by defendant S. P. Northcutt where said creek crosses his farm, said Northcutt acting in furtherance of said conspiracy, forbidding said raft to be floated through his lands, and that said Northcutt threatened to cause the arrest of plaintiff's agents if they proceeded further therewith; that there was no other route by which said raft could be conveyed to its destination, and that because of said threats and interference plaintiff was compelled to abandon said raft for the time being, and the same was allowed to remain in said creek, whereby the ties therein became water-soaked and damaged; that plaintiff then had 7,000 ties prepared for market and to raft down said stream, but was and is prevented from so doing because of said wrongful acts of the defendants, whereby plaintiff alleges he is damaged in the sum of $250; and that said wrongful acts of defendants prevented plaintiff from carrying on his said lawful business, and threatens a multiplicity of suits at law, which will harrass the parties and not determine the issue, to wit, the right of rafting in said stream. Wherefore plaintiff prays that defendants be restrained in that behalf, etc., from further interference with plaintiff's said business of rafting his ties to market. The petition was duly filed in the office of the circuit clerk of Washington county, and thereupon an application was made to the probate judge of said county, as is provided by sections 3627 and 3628, Rev. St. 1899, for a temporary restrainig order against defendants, upon a showing being made to said probate judge, as required by the statutes, supra, that there was not then any circuit court in session or any judge thereof then in Washington county. The probate judge issued a temporary writ of injunction in accordance with the prayer of the bill, returnable to the next term of the circuit court of said county. The cause coming on to be heard in the circuit court, defendants appeared and filed their motion to dissolve the injunction, which motion is not included in the bill of exceptions before us. An answer was also filed by the defendants in which they alleged that they had no interest in common in the land through which said creek passes, but admitted their several ownerships of the several farms mentioned in the petition, and denied every other allegation of the bill. The case was tried to a court without the intervention of a jury. Defendants entered their objection to the introduction of any evidence under the petition, on the ground that it failed to state facts sufficient to constitute a cause of action, which objection was overruled and exception saved.

From the record before us, it appears that the issue between the parties and that tried by the court below was whether or not Indian creek is a stream fit, useful, and capable for rafting purposes. Evidence pro and con was introduced on this issue by the respective parties, at the conclusion of which the court took the matter under advisement until the following term, when it found the issues for the plaintiff. The evidence on the part of plaintiff tended to prove that plaintiff was a tie contractor, and had been in the business for a number of years in the vicinity of Indian creek; that said creek was a tributary to the Meramec river, and the Meramec river is tributary to the Mississippi river; that for seven years past plaintiff has floated ties down said creek in large quantities from points below the scene of the present controversy. A raft usually consists of about 600 ties. At this time plaintiff had 7,000 ties along the creek above defendants' farms ready for floating; that said creek in its natural state is from 32 to 48 feet wide, and its depth in the most shallow places is from 12 to 14 inches, and in other places its depth is about 15 feet, and in its usual and natural condition it is fit, capable, and useful for rafting; that it was a tortuous mountain stream, and in the months of April, May, and June, as well as in some of the autumn months, was usually well supplied with water from its mountain sources. The ties are 6 inches in diameter and 8 inches in width; that rafts are constructed by placing 20 to 30 ties in a block, the rafts thus made being 6 inches thick and about 8 feet wide, and the several blocks are coupled together and follow others down the stream; that a floating tie draws about 4½ inches of water, and said rafts were floated in said creek and over the shoals thereof with the raftsmen thereon, and without their going upon the land in aid thereof; that, as plaintiff's men were progressing down the creek with the raft of 441 ties, at the farm of defendant Northcutt they were forbidden by him to proceed further therewith; that Northcutt and the other defendants maintained water gaps across said creek, and plaintiff was not permitted to pass through the same; that trees had been felled by defendants into said creek in order to prevent the passing of said rafts, and notices had been posted by defendants along said creek notifying plaintiff not to pass through said farms with said rafts. Mr. Wilkerson, who was interested in the success of plaintiff's rafting, called upon defendants in order to effect an amicable settlement of the matter prior to the institution of this suit. They admitted to him that they had felled the trees into the creek in order to prevent rafting, and defendant Kimberlin said to him, speaking for himself and the others: "This creek is worth a whole lot of money to you, and you ought to be willing to pay us for it." The two Northcutts at the time, speaking for all, proposed that plaintiff pay $200, or $50 to each defendant, for the privilege of rafting through their farms. Defendants also admitted to the plaintiff that they had obstructed the creek to prevent his rafting thereon. It was also shown that the cost of floating the ties to market by means of the river is about 5 cents per tie, and to convey them otherwise would...