Rhodes v. Otis , 33 Ala. 578 ( 1859 )

A. J. WALKER, C. J.—

The word navigable has, in the English common law, a technical meaning, and is used to describe public rivers where the tide ebbs and flows. Angell on Water Courses, 604, § 542; 3 Kent’s Com. 512; Stuart v. Clarke, 2 Swan, 9; Scott v. Wallace, 3 N. H. 321; Morgan & Harrison v. Reading, 3 S. & M. 366; Comm’rs v. Withers, 29 Miss. 21; Ex parte Jennings, 6 Cow. 518.

The charges given and refused in this case manifestly use the word navigable in its common, and not in its technical acceptation; and in that sense we will understand it, for the purposes of this opinion.

It is undoubtedly true, as held by this court in Ellis v. Carey, 30 Ala. 725, that all streams below tide-water are, prima facie, public; and all above tide-water are, prima facie, private, not subject to a public right of floatage upon them.—King v. Montague. 4 B. & C. 598 ; Angell on Water Courses, 596, § 535; Mayor of Colchester 7 Ad. & E. 33, (53 E. C. L. 339;) Miles v. Rose, 5 Taunt. 705, (1 E. C. L. 240;) Wadsworth v. Smith, 11 Maine, 278; Morgan v. King, 18 Barb. 277.

Bashi creek, being above tide-water, is, prima facie, not a navigable stream. The onus of proof was, therefore, upon the party claiming for it the character of a navigable stream.

[2.] It is difficult, perhaps impossible, to define with precision the fresh-water streams, which are public, or, in the common acceptation of the term, navigable. A reference to the decisions will aid us in ascertaining the principles upon which the question is to be decided, as to the creek mentioned in the bill of exceptions in this ease.

The test laid down in the People v. Platt, 17 John. R. 211, of a fresh-water stream, in which the public have an easement for purposes of transportation and commercial intercourse, is their susceptibility of use as a common passage for the public. The navigability of the Hudson at Stillwater is placed upon the ground, that it was, beneficially to the public, subservient of rafting.—Palmer v. Mulligan, 3 Caines, 318. Lord Hale describes navigable streams as of sufficient depth for valuable floatage.—Angelí on Water Courses, 596, § 535. In Wadsworth v. Smith, 11 Maine, (2 Fair.) 278, it is said, those streams, which are sufficiently large to bear boats or barges, or to be of public use in the transportation of property, are highways by water, over which the public have a common right.

The South Carolina court, while declining to define a navigable stream, said, that that would not be a navigable stream, the natural obstructions of which prevented the passage of any boats whatever.—Cates v. Wadlington, 1 McCord, 583; see Wilson v. Forbes, 2 Dev. Law, 30; Ingram v. Threadgill, 3 Dev. Law, 61. In Tennessee it is held, .that the public have an easement in shallow streams, which are of sufficient depth for valuable floatage, as for rafts, flat-boats, and, perhaps, small vessels of lighter draft than ordinary.—Stuart v. Clark, 2 Swan, 16; Elder v. Burrus, 6 Humph. 364.

The language of the decision in Munson v. Hungerford, 6 Barb. 370, is: “A stream, to be navigable within the authorities, must furnish a common passage for the King’s people; must be of common or public use for carriage of boats or lighters; must be capable of bearing up and floating vessels for the transportation of property, conducted by the agency of man. It is not enough that a stream is capable (during a period, in the aggregate, of from two to four weeks in the year, when it is swollen by the spring and autumnal freshets) of carrying down its rapid course whatever may have been thrown upon its angry waters, to be borne at random over every impediment, in the shape of dams or bridges, which the hand of man has erected. To call such a stream navigable, is a palpable misapplication of the term.”

It is intimated, though not decided, in Brown v. Scofield, 8 Barbour, 239, that the courts will take judicial notice of such streams as are public highways; and in determining whether the Carristo river is navigable, stress is laid upon the fact, that it had been used as a highway, since the settlement of the country; and the remark is made, “that these great natural channels and avenues of commerce, whenever they are found of sufficient depth to float the products of the mines, the forests, or the tillage of the country, through which they flow to market, have always been adjudged by our courts to be subject to the right of passage, independent of legislation.”

The question in Curtis v. Keesler, 14 Barbour, 511, was whether Calikoon creek was a navigable stream. The proof was, that the tide did not ebb and flow in the stream; that, in its natural state, it was not capable of floating a log; that when swollen by freshets, or the melting of snow, it*would bear up a raft, or single logs of timber; that it had been occasionally used, for many years, by a few persons. Declaring that a stream, to be navigable, must be a common passage for the King’s people; must be of public use for carriage of boats and lighters; must be capable of bearing up and floating vessels for the transportation of property, conducted by the agency of man, the court held, that the stream was not navigable.

In Morgan v. King, 18 Barbour, 277, it was decided, that a stream might be public, although useful only to float single logs without manual guidance; and that a stream, upon which and its tributaries saw-logs, to an unlimited amount, would be floated eveiy spring, and for a period of from four to eight weeks, and for the distance of a hundred and fifty miles, and upon which unquestionably many thousands would be annually transported for many years to come, has the character of a public stream for that purpose. See, also, Brown v. Chadbourne, 31 Maine, 9; Moore v. Veazie, 32 Maine, 343.

Morgan v. King, supra, presented a peculiar case, where the immense forests of valuable timber, contiguous for a great distance to the stream, which flowed along the great slope from the south towards the St. Lawrence, made the creek the means of transportation for the. marketable product of the labor and enterprise of a great number of people, throughout a large extent of country. The number of people interested in the use of the stream for a particular purpose, the magnitude of the public interests involved, and the fitness of the stream for the carriage of the peculiar article of commerce of a large section of country, were controlling elements in that case.

Rowe v. The Granite Bridge Corporation, 21 Pick. 344, decides, that a creek, below tide-water, would not be public, unless it was “navigable to some purpose useful to trade and agriculture.”

The length of time, for which an appropriation to public use has existed, is prescribed as one of the tests, though' certainly not a controlling one, of a navigable stream. Woolryeh on Waters, 40: Shaw v. Crawford, 10 Johns. 246. Force is given, in most of the cases, to the consideration, that the stream had or had not been long'used for public purposes.—King v. Montague, 4 B. & C. 96. This consideration is entitled to less weight in a new, than in an old country; but the country through which the creek upon the character of which we are passing flows, is not so new as to make it unimportant.

Another inquiry, which is of some importance, in testing the character of a stream, is whether it was omitted from the government surveys.—Ellis v. Carey, 30 Ala. 725.

From the somewhat conflicting authorities which we have examined, we attain the conclusion, that in determining the character of a stream, inquiry should be made as to the following points: whether it is fitted for valuable floatage; whether the public, or only a few individuais, are interested in transportation; whether any great public interests are involved in the use of it for transportation ; whether the periods of its capacity for floatage are sufficiently long to make it sueceptible of use beneficially to the public; whether it has been previously used by the people generally, and how long it has been so used; whether it was meandered by the government surveyors, or included in the surveys; whether, if declared public, it will probably in future be of public use for carriage. And in the application of these inquiries to the facts of a case, it is to be remembered that the onus probandi is upon the party claiming that a stream aboVe tide-water is public. '

Applying the tests above indicated to this case, we decide, that Bashi creek is not a navigable stream. There is no proof that Bashi creek can be used for any purpose, save the floating of timber. There was no proof that the creek could be used, even for that purpose, for a greater distance than about six or seven miles in a direct line. It had never been used before by any person for transportation in any way. It has never been used since by any person for that purpose. It is not shown that there are large and extensive forests, fitted to afford timber for market, contiguous to the stream ; nor is it shown that any great business of transporting timber on it can ever spring up. 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, 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 back-water from the Tombeckbe 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 short one, runs down very soon. The seasons being unusually dry, it was impracticable, from the spring of 1854, to some time in the winter of ’56, to float spars out of the creek; thus showing that, for long periods of time, it is totally useless, even to float logs. 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 back-water, is three months. The creek is not shown to have been excepted from the government surveys. Upon such evidence, it cannot be held, that Bashi creek is a navigable stream. It is not sufficient to show that a contingency has arisen, or may arise, in which a particular individual can use the stream for a valuable purpose. The public must be interested, before it can become a public highway.

The holding such streams to be public highways, would be productive of great and extensive injury to individuals and the public. A large number of creeks in the State, never thought of as navigable streams, might be used for floating rafts, for as long a time in each year, and, perhaps, for a greater distance, if advantage were taken of every rise, however short in duration. Every mill-dam on any of those creeks, every bridge over them, every water-gap, and every foot-log, could be treated as a nuisance, at the option of any individual, who might think proper to go up the stream and prepare a raft of timber, to await a rise from a freshet, to float his raft down; and he might sue the owners of mills for all damage sustained, in consequence of the interference of the dams. To regard such streams as navigable, could subserve no useful public purpose, and might prove detrimental to the great manufacturing interests of the State, as well as to the public interest in having suitable bridges on the public roads. Moffett v. Brine, 1 Iowa, 348: Varick v. Smith, 9 Paige, 553; 5 Ind. 103.

[3.] When the facts are ascertained, the question whether the stream is a public highway, is a question of law.—Morgan v. King, 18 Barb. 285. Making every intendment in favor of the plaintiff, which would be proper on a demurrer to evidence, we think the law pronounces the judgment, that Bashi creek was not a navigable stream; and we decide, therefore, that the court below erred in refusing to charge the jury, that upon the evidence in this case the creek was not a navigable stream.

[4.] There is no tendency of proof to the conclusion, that the floatage upon the stream has ever been, is n ow, or ever can be, valuable to the public generally; and while the proof may be conflicting in its description of the stream, there is no conflict as to facts indispensably necessary to make it a navigable stream. In such a case, it is certainly a right of the parties to have from the court a declaration of the legal effect of the evidence, unless some sufficient legal reason for not giving it exists. Knapp v. McBride & Norman, 7 Ala. 29; Hollingsworth v. Martin, 23 Ala. 597; Swift v. Fitzhugh, 9 Porter, 67; Skinner v. State, 30 Ala. 526; Knight v. Bell, 22 Ala. 206; Woolfork v. Sullivan, 23 Ala. 558; Powell v. Williams, 27 Ala. 52; Crum v. Williams, 29 Ala. 446. But the court cannot be required by a party to charge the jury, as to the legal effect of the entire evidence, unless, after the concession of all points upon which there was a conflict of evidence, and of all adverse inferences from the evidence, he is entitled to the charge. We do not deny, that no error could be predicated of a refusal by the court to charge the jury, as to oral testimony, that there was no evidence of any particular fact, because the presiding judge did not remember whether there was or not.—Knox v. Fair, 17 Ala. 503; Lancaster County Bank v. Allbright, 21 Penn. State, 228. Whether a presiding judge could legally excuse himself for the omission to give such a charge, upon the ground that he did not remember the evidence, it is not necessary for us to decide, because no such ground of refusal was assumed in this case, and the legitimate inference from the bill of exceptions is, that its refusal was a rejection of the legal proposition involved.

[5.] The plaintiff in this case claims damages, not only upon the ground that Bashi creek was a navigable stream, but that he had a right resulting from contract to float his spars down it. It is a debated point between the counsel, whether the contract that the plaintiff might float his spars through the lands of the defendant, was a mere license, or the transfer of an interest in land, within the statute of frauds. A license is defined by Kent to be an authority to do a particular act, or series of acts, upon another’s land, without possessing any estate therein. 3 Kent’s Com. 592; Riddle v. Brown, 20 Ala. 412. The distinction between an easement within the statute of frauds and a license, is sometimes difficult of discernment; but there can be no doubt, that the privilege of floating the plaintiff’s spars upon a private stream of the defendant, which does not involve the holding or occupation of the real estate, is within the definition of a license. Indeed, the books abound in cases, where privileges on land, of a much more fixed and lasting character, have been held to be mere licenses.—Wood v. Ledbetter, 13 M. & W. 837; Browne on Statute of Frauds, 30, §§ 27-28; 2 Platt on Leases, 23; Dubois v. Kelly, 10 Barb. 496; Cook v. Stearns, 11 Mass. 537; Davis v. Townsend, 10 Barb. 334; Jamison v. Milliman, 3 Duer, 255; Wilson v. Chalfant, 15 Ohio, 248; Le Fevre v. Le Fevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; Angell on Water Courses, chap. 8.

[6.] It is true that parol licenses, unexecuted, are generally, though not universally, held to be revocable, even when they are made upon a valuable consideration. The question in this case is not whether the license was revocable before it was acted on: it is whether the license can be revoked alter it had been obtained for a valuable consideration, and the plaintiff, acting under it, had conveyed his spars to the creek, and placed them in it, ready to be carried down the stream by the anticipated rise, when the revocation would work great injury to the plaintiff, and when the exorcise of the authority conferred would involve no occupancy of the defendant’s land. There are, we admit, some authorities which would allow a revocation of the license, even under these circumstances ; but we are not willing to follow them. It would be against all conscience to permit the defendant to revoke his license, after the plaintiff had acted upon it so far that great damage must necessarily result from the revocation. Every reason upon which the doctrine of estoppels in pais rests, applies. It is a plain case, where one party has, by his conduct, induced another to act in such a manner, that he cannot be allowed to retract without serious injury to that other person. "We think a denial of the right of revocation, under such circumstances, is consistent with justice and right, supported by the analogies of the law, and many respectable decisions.—Rerick v. Kern, 14 S. & R. 267; Nettleton v. Sikes, 8 Metcalf, 34; Angell on Water Courses, 5 div. of chap. 8; Hall v. Chaffee, 13 Vermont, 150; Bridges v. Purcell, 1 Dev. & Bat. (N. C.) 492; Sheffield v. Collier, 3 Kelly, (Ga.) 82; Le Fevre v. Le Fevre, 4 S. & R. 241.

[7.] We think, upon the averments in the declaration, Baslii creek would be a navigable stream. The complaint contains, therefore, a cause of action predicated upon an alleged interference with, and obstruction of, the plaintiff’s right to navigate a public stream. This cause of action is in trespass on the case. The complaint also contains a cause of action for an infringement by the defendant of the plaintiff’s right growing out of a contract with the defendant, and a breach of the defendant’s duty under that contract. This was, also, a cause of action in case.—Myers v. Gilbert, 18 Ala. 467; Wilkinson v. Mosely, 18 Ala. 288. The declaration, therefore, contains two complete causes of action.

The judgment of the court below is reversed, and the cause remanded.