Morrison v. Coleman

• Decision Date: 20 June 1889
• Citation: 6 So. 374,87 Ala. 655
• Parties: MORRIS ET AL. v. COLEMAN.
• Court: Alabama Supreme Court

6 So. 374

87 Ala. 655

MORRIS ET AL. v. COLEMAN.

Supreme Court of Alabama

June 20, 1889

Appeal from chancery court, Geneva county; JOHN A. FOSTER, Judge.

The bill in this case was filed by Morrison & Co. against John T Coleman, to enjoin him from making obstructions, and continuing them on Spring creek, which is alleged to be a navigable stream. Upon these averments the chancellor granted a writ of injunction as prayed. The respondent answered the bill under oath, and denied all the averments thereof material to the navigability of the said Spring creek. The respondent also demurred to the bill for the want of equity and on the ground that the averments of the bill were not sufficient to show the navigability of the said stream; and also made a motion to dissolve the injunction upon the ground that the bill contained no equity, and upon the denials of the answer. The chancellor granted this motion, and dissolved the injunction, and complainants appeal.

C H. Laney and Watts & Son, for appellants.

STONE C.J.

The present case raises the inquiry whether Clear creek, a tributary of Choctawhatchie river, above the ebb and flow of the tides, is a navigable stream. All the authorities agree that it is, prima facie, unnavigable. It was not meandered in the government surveys, and, being above tidewater, the burden is on him who asserts its navigability to aver and prove it. When such stream is, and when it is not, navigable, is a question which has been many times before this court. If a navigable stream, then it is a public highway, and may not be obstructed. In Rhodes v Otis, 33 Ala. 578, the question was very elaborately considered, WALKER, C.J., delivering the opinion of the court. After collating many authorities, the summing up in that case contained the following language: "It does not appear that the public generally, or any large number of persons, will ever use the stream for such purpose. Indeed the short distance to which the stream can be used [six or seven miles] affords a strong argument that no large number of persons will probably ever use it for floating timber. The stream, even below the mouth of Tallahatta creek, can only be used for floatage in freshets from head-water, or from backwater from the Tombeckbee river. In case of freshets from head-water it can be used for floating rafts only for a very short time, because the creek, being a very short one, runs down very soon. *** The highest estimate of the aggregate of the brief periods when it might be used for the short distance for floating rafts and logs on account of freshets and backwater is three months. The creek is not shown to have been excepted from the government surveys. Upon such evidence it cannot be said that Bashi creek is a navigable stream." Peters v. Railroad Co., 56 Ala. 528; Walker v. Allen, 72 Ala. 456; Sullivan v. Spotswood, 82 Ala. 163, 2 South. Rep. 716. In the case of The Daniel Ball, 10 Wall. 557, speaking of streams above tide-water, the court said: "A different test must, therefore, be applied to determine the navigability of rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law, which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." In Ang. Water-Courses, § 535, is this language: "All rivers above the flow of tide-water are, by the common law, prima facie private; but when they are naturally of sufficient depth for valuable floatage, the public have an easement therein for the purposes of transportation and commercial intercourse, and in fact they are public highways by water." This doctrine is amply supported by authority, and nowhere is it, perhaps, better or more clearly expressed than in Morgan v. King, 35 N.Y. 454, and we have declared...