State v. Wright
| Decision Date | 18 January 1919 |
| Parties | STATE OF MISSOURI, Respondent, v. T. L. WRIGHT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ripley County Circuit Court.--Hon. J. P. Foard, Judge.
AFFIRMED.
Judgment affirmed.
Chas B. Butler for appellant.
Geo. D Sloan for respondent.
The defendant was convicted of violating Section 4620, Revised Statutes 1909, the information of the prosecuting attorney charging that defendant unlawfully, willfully and maliciously cut loose and set adrift a raft of plank, lumber and railroad ties, the property of G. S. Limes and J. A. Limes, composing the partnership of J. A. Limes Tie & Timber Company. Defendant's punishment was fixed at a fine of $ 50 and he took due and proper steps to appeal the case to this court.
The evidence clearly shows that the Limes Tie and Timber Co. was engaged in the tie and timber business on Current River, floating ties and timber down that river to the town of Doniphan, a railroad point, where same were loaded on cars and shipped to market. Said company had been in the business for some time and was doing quite an extensive business. The T. L. Wright Lumber Company, of which the defendant was president, was engaged in a like business and there was sharp rivalry between the two companies. On the occasion in question the Limes Company had floated a raft of railroad cross and switch ties down Current River and, reaching the town of Doniphan in the evening, tied up the raft for the night by fastening the same with a rope to a tree standing on the bank of a small island near the east side of the river and a short distance above the ford of the public road crossing the river and leading into the town. Ties and timber so floated down the river were usually taken out of the river at this ford. The tie raft, when tied to this tree was yet out in the river and was fastened in other ways. After dark that evening the defendant went to this island and cut the rope fastening the tie raft to this tree on the bank, resulting in the raft becoming loose and drifting down the river and lodging on the opposite side in a somewhat damaged condition.
The defendant testified in his own behalf and frankly admitted that he cut loose and set adrift this tie raft on the occasion mentioned. The defendant sought to justify his action in so doing on the ground that the T. L. Wright Lumber Company, of which he was president, was the owner of the island on the bank of which stood the tree to which the Limes Company tied its tie raft. He complained that the Limes Company and others had previously done some damage to the island by using same as an anchor in tying up timber rafts or rather in landing thereon such ties and timber. For this reason the Wright Lumber Company had forbidden the Limes Company and others to anchor rafts to this island and posted notices thereon to this effect. It is shown, however, that on this occasion the raft was in the river and nothing was done except to tie one end of a rope to a tree standing on the bank. There is abundant evidence from which the jury could find that defendant's real purpose in forbidding the tying of rafts to this island and in cutting this one loose was to embarrass the Limes Company in its business. In fact defendant avowed his intention to repeat this act of cutting such rafts loose every time one was anchored to this island.
The island in question is shown to be owned by the Wright Company and was so adjudicated in Wright Lumber Company v. Ripley County, 270 Mo. 121, 136, 192 S.W. 996, where the court also held that Current River is a non-navigable stream in the sense that the fee title of a riparian landowner extended to the middle of the stream. This river is shown, however, to be "a pretty good sized little stream" as one witness said and is extensively used by small boats and river craft as well as for rafting logs and all kinds of timber products to market. We take judicial knowledge also, in a way, that it is a fine fishing stream and that boats are used for that purpose also. This court in Weller v Lumber Company, 176 Mo.App. 243, 256, 161 S.W. 853, took notice that this same river is navigable in the sense that it is "capable of transporting commerce in any manner in which commerce is ordinarily conducted in a navigable or floatable stream and is a public highway." In McKinney v. Northcutt, 114 Mo.App. 146, 161, 89 S.W. 351, the court held that a natural stream of water capable of being used for floating rafts of logs, timber or ties to market is navigable in the sense that it is a public highway which no one, even a riparian owner, has a right to obstruct "and the rights of the riparian owners to the soil adjacent to and underlying the bed of such stream are subject to...
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