Northcut v. John O. Long Tie and Lumber Company

• Decision Date: 30 January 1915
• Citation: 173 S.W. 15,187 Mo.App. 386
• Parties: S. P. NORTHCUT, Respondent, v. JOHN O. LONG TIE AND LUMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

173 S.W. 15

187 Mo.App. 386

S. P. NORTHCUT, Respondent, v. JOHN O. LONG TIE AND LUMBER COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 30, 1915

Appeal from Crawford County Circuit Court.--Hon L. B. Woodside Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James Booth and F. H. Farris for appellant.

Where as in this case, the defendant was using the creek for floating ties, the presumption is that it was making a rightful and proper use of the creek. Chandler v. Transit Co., 213 Mo. 244. Especially does this presumption apply in this case where it had been previously adjudicated in an action where this plaintiff was defendant, that Indian Creek was a fit and proper stream to be used for rafting and floating ties--that it is to be regarded as a public highway for that purpose. McKinney v. Northcut, 114 Mo.App. 146.

M. E Rhodes and Harry Clymer for respondent.

(1) The law has been long established, that unless authorized by appropriate constitutional enactment, no one can in any material manner or extent interfere with the waters of running streams in such a way as to invade the rights of others. Realty Co. v. Railroad, 154 Mo.App. 364. (2) Respondent had a right to occupy the stream in floating his ties to the market, without inflicting injury upon the adjacent property. Persons engaged in rafting ties are liable to riparian owners for injury to their property, and must respond in damages. McKinney v. Northcut, 114 Mo.App. 146.

ROBERTSON, P. J. Sturgis and Farrington, JJ., concur.

OPINION

ROBERTSON, P. J.

--This is an action to recover damages for the overflow of plaintiff's land from Indian Creek by reason of railroad ties jamming and forming an obstruction therein after having been placed in said creek above said land by the defendant. There is no negligence on the part of the defendant alleged or proved. The plaintiff prevailed and the defendant has appealed.

The railroad ties were placed in said stream for the sole and only purpose of floating them as a matter of commerce. The only question in this case for decision is that of whether it is necessary to a recovery in this case that the plaintiff prove negligence on the part of the defendant in using the stream before he should be permitted to recover. This question must be answered in the affirmative. In the case of McKinney v. Northcut, this plaintiff, 114 Mo.App. 146, 89 S.W. 351, it is held relative to this creek, that it is such a stream as the public has a right to float railroad ties in. It was there held, as we hold, that this stream, for the purpose which defendant was using it, is a public highway. It is useless to reiterate what was said in the opinion in that case, but we add the case of Hot Springs Lumber and Manufacturing Co. v. Revercomb, 55 S.E. 580, to the authorities there cited.

It being determined that this stream...