Seabd. Air Line Ry v. Sikes

• Decision Date: 16 March 1908
• Docket Number: (No. 766.)
• Citation: 4 Ga.App. 7,60 S.E. 868
• Parties: SEABOARD AIR LINE RY. v. SIKES et al.
• Court: Georgia Court of Appeals

60 S.E. 868

4 Ga.App. 7

SEABOARD AIR LINE RY.

v.SIKES et al.

(No. 766.)

Court of Appeals of Georgia.

March 16, 1908.

1. Navigable Waters—"Navigable Stream."

"A 'navigable stream' is one capable of bearing upon its bosom, either for the whole or a part of the year, boats loaded with freight in the regular course of trade. The mere rafting of timber, or transporting wood in small boats, does not make a stream navigable." Applying this definition to the evidence, the Canoochee river, in this state, is not a navigable stream.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 5-11.

For other definitions, see Words and Phrases, vol. 5, pp. 4675-4684; vol. 8, p. 7728.]

2. Same—Rights of Public.

The right of the public to use water courses as highways is restricted in this state to such as are navigable.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 43, 47.]

3. Waters and Water Courses—Rights of Landowner—Public Use.

The owner of land is entitled to the free and exclusive enjoyment of all water courses not navigable flowing over his land; but this right may become subject to a public servitude by acquiescence and use sufficient to show a prescription.

4. Same—Nonuser.

A right acquired by the public to use a water course not navigable may be lost by a discontinuance of such use for a time sufficient to justify an inference of abandonment.

5. Corporations—Declarations of Agent.

A corporation is not bound by a declaration of an agent made outside the scope of his agency.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1685-1691.]

6. Trial — Instructions — Issues and Theories.

The trial court should not undertake to state specifically the contentions of one party, without in like manner stating the corresponding contentions of the other party.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 478, 479.]

(Syllabus by the Court.)

Error from City Court of Reidsville; C. L. Morgan, Judge.

Action by N. Sikes and others against the Seaboard Air Line Railway. Judgment for plaintiffs, and defendant brings error. Reversed.

Kelley & Smith and Eason & Bull, for plaintiff in error.

R. E. De Loach and W. T. Burkhalter, for defendants in error.

HILL, C. J. Sikes and others brought suit against the Seaboard Air Line Railway to recover damages resulting to them from the erection of a bridge across the Canoochee river. They allege that the Canoochee river is a navigable stream, which the public has the right to use as a highway, and that the river has been in fact used by the public for the purpose of drifting and floating lumber, timber, and logs to market so long that "the memory of man runneth not to the contrary, " and they assert that the public has therefore acquired a right by prescription to such use of the river. The Seaboard Air Line Railway erected a bridge across the river, which it is asserted prevents the enjoyment of this right by obstructing the passage of rafts; the arches supporting the bridge over the river being too narrow to permit rafts to pass between them. They base their claim for damages in the present suit on the following facts: They had information that the railway, in erecting the bridge over the river, had constructed it so as not to interfere with the use of the river as a commercial highway for floating rafts of lumber and logs. Relying upon this information they prepared a raft of logs containing 700 pieces of stick timber, placed this raft in the river some 10 miles above the bridge in question, and floated it down to the bridge, when it was discovered that the raft could not pass between the arches, and they were compelled to go to heavy expense in taking the raft to pieces in order to get the logs through. The jury found a verdict in favor of the plaintiffs, and the defendant's motion for a new trial was overruled.

The undisputed evidence shows that the Canoochee river is a small, crooked stream, incapable of floating freight or passenger boats, and "only used for rafting timber and fishing." In its ordinary condition it is incapable of floating rafts, and only when the volume of water is increased by rains can it be so used. This use has not been constant or continuous during this period, but sometimes has been discontinued for several years. The owners of the land adjacent to the river have never interrupted or objected to such use. The river, where this bridge crosses, is from 75 to 100 feet wide, and the bridge is located on the right of way of the railway, and the space between the arches supporting the bridge across the river is from 16 to 17 feet wide. This general statement of the evidence is sufficient to illustrate the questions of law involved.

1. The controlling question in the case is: What are the rights of the public or of individuals to use water courses as highways? The right to use water courses as highways is analogous to the right to use public highways upon the land. This statement applies to those waters that are navigable. From the very earliest times, both in this country and in England, it has been recognized that the citizens have an inherent right to use as highways all navigable rivers, and this right of navigation extends to the entire surface of the water from bank to bank. In determining what is a navigable stream, It Is unnecessary to consult the text-writers from the De Jure Maris of Lord Hale to Gould on Waters, or the numerous decisions of the courts. Section 3059 of the Civil Code of 1895 gives a clear and explicit definition: "A navigable stream is one capable of bearing upon its bosom, either for the whole or a part of the year, boats loaded with freight in regular course of trade. The mere rafting of timber, or transporting wood in small boats, does not make a stream navigable." The test by which to determine the navigability of a particular river in this state is found in the navigable capacity measured by the essentials of this definition. Applying this test to the Canoochee river, it is perfectly clear that it is not a navigable stream. It is incapable of bearing upon its bosom at any time any sort of boat loaded with freight or passengers, and is capable of rafting logs or timber only when its waters are swollen by generous rains. The evidence eliminates from the case, as an issue, the question of its navigability.

2. It has been frequently held that although a river may not be navigable in a strict legal sense, so as to import general public servitude, yet, if in its natural state it is capable of floating to market logs and other products of the forest, the public has an easement in the use of the water for that purpose. In 4 Amer. & Eng. Enc. of Law (2d Ed.) 709, It is broadly stated that: "The general public has an easement of floating logs down any stream which is capable of floating them." A large number of cases are cited in the notes in support of the text. "The public has a right to float logs on streams which in their natural state are capable of being so used, or on streams capable of floating logs at some season every year." 25 Cyc. 1566, notes 7 and 8; 33 Century Digest, tit. "Logs and Logging, " § 29; Brooks v. Cedar Brook Co., 82 Me. 17, 19 AO. 87, 7 L. R. A. 460, 17 Am. St. Rep. 459. In Morgan v. King, 35 N. Y. 459, 91 Am. Dec. 58, it is declared that: "The true rule is 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 for the market, the product of the forests upon its banks. It is not essential to the right that the property to be transported should be carried in vessels, provided it can ordinarily be...