Nutter v. Gallagher

• Decision Date: 18 June 1890
• Citation: 19 Or. 375,24 P. 250
• Parties: NUTTER v. GALLAGHER.
• Court: Oregon Supreme Court

24 P. 250

19 Or. 375

NUTTER v. GALLAGHER.

Supreme Court of Oregon

June 18, 1890

Appeal from circuit court, Clatsop county; F.J. TAYLOR, Judge.

The appellant brought suit against the respondent, in said court to enjoin him from erecting an alleged obstruction to the navigation of a certain slough, in said county, termed by him "Vincent's Slough." He alleged ownership in fee and possession of the W. 1/2 of the N.W. 1/4 of section 15 township 7 N., of range 9 W., in said county; that for the last five years he had occupied said premises as a home; that they are situated about three-quarters of a mile from Young's river, a navigable stream, wherein the tide ebbs and flows, and the only way the appellant can get to and from them, or can carry or transport the products of the said land to market, is upon a body of water extending from said Young's river to the said premises, called and known as "Vincent's Slough," which is a natural water-way, navigable for boats, saw-logs, scows, and other water-craft, and that, without the use thereof for such purposes, it will be impossible for him to have ingress and egress to and from the premises; that said slough has been from time immemorial navigated by the public generally, in the manner aforesaid. The appellant also alleged that he was and had been for six years past, the owner of a large scow and other boats, and during all that time had navigated said slough, and transported thereon the products of his land, and wares and merchandise, to and from market; that since the commencement of the suit a county road had been laid out and established, leading from his land down the south bank of said slough to a point on respondent's land where a bridge on another county road crossed the slough; that the road leading from respondent's land connected with the bridge, and he could transport his supplies and products to and from the land over such road to the bridge, and from the bridge upon the slough to and from market; that the water in the slough at the bridge was deeper, and navigable for larger craft, than on his land; that respondent was threatening to entirely close the entrance to the slough by driving in the bed thereof large piling, and fillingbetween with brush and other material, causing thereby great and irreparable injury and damage. The respondent denied the material allegations contained in the complaint, and, for a further answer alleged that he was owner and in possession of lots No. 5 and 6, in section 10, township 7 N., range 9 W., in Clatsop county, Or., which premises lie north of adjoin said land of appellant; and that said slough was wholly within respondent's premises, and was not subject to public navigation, but was necessary for the free use and enjoyment of his land; that said land is known as "tide land," and is only productive and useful by being diked and reclaimed; that to reclaim it he will be compelled to dike a portion of it; which diking is the obstruction complained of by appellant. A reply was filed on the part of the appellant, denying the new matter set forth in the answer. The case was thereupon referred to J.A. Bowlby, Esq. to take testimony, and report the facts and conclusions of law.

The said referee thereafter made his report, in which he found That the said parties were owners, respectively, of the said parcels of land hereinbefore referred to, and were in possession of the same as alleged; that said Young's river was a navigable stream, in which the tide ebbs and flows, and that it runs a northerly course, near the said lands, and east thereof; that a small stream coming from the hills flows across appellant's land, and down through sloughs, aross the land of respondent, to Young's river near by; that the tides rise in Young's river, and back the water in these sloughs and this stream onto the parties' said lands, but only high tides and winter freshets increase the depth of the water on the stream on the appellant's land; that the highest tides of summer only raise the water on the land of the latter a few inches, but the highest winter tides and freshets raise it two or three feet; such freshets only occur two or three times during a winter; that on said stream, and on the respondent's land, about 12 miles below the south line of appellant's land, is a landing known as "Vincent's Landing," to which boats and scows run from Young's river, and bring and carry away freight; that in the years 1851 and 1869 persons ascended with boats from Young's river the said slough and stream to a point on respondent's land four or five rods above Vincent's landing, to where lay a large log across the slough, now known as the "foot log." The water there at that time was three feet deep at neap tide, and six feet deep at new-moon tide. That above the foot log, on the respondent's land, the channel was obstructed with logs and overhanging bushes,; that, prior to 1878, the channel from Vincent's landing to a short distance below was from four to six feet wide, and about the same number of feet in depth, and high tides would fill and overflow the channel to a depth of some two feet; that in the year 1878 the then occupant of appellant's land, with the consent of R. Vincent, then occupant of respondent's land, cut out the foot log, and cleared the logs and bushes out of the stream and slough, and cut away the points at crooked places thereof, so that small boats could pass from appellant's land to Young's river, and return at high tide; and about the same time the channel below Vincent's landing was so improved that large boats, wood-scows, steamers, and vessels ran to that point; that subsequent to 1882 appellant, with the consent of the then owners of respondent's said land, further improved...