Smith v. Fonda ( 1886 )

Cooper, C. J.,

delivered the opinion of the court.

By the first instruction for the plaintiff the jury was told that the testimony was insufficient to establish that Bed Creek is a navigable stream. Counsel for appellee concede that an instruction of this character which withdraws from the jury a question of fact can be supported only in those cases in which a verdict based upon the evidence withdrawn would not be permitted to stand. This we think is the correct test, and under proper circumstances the practice of giving peremptory instructions is commendable, the effect being to terminate in one trial an issue which otherwise might be protracted through several. But care should be exercised not to infringe upon the proper function of the jury, as the body to which it is committed to weigh conflicting evidence and determine the predibility of witnesses.

We find .no fault with the test laid down by counsel for appellees to determine when a stream is or is not navigable, but whether Red Creek is a navigable stream is a question not free from doubt under the testimony given by the witnesses in this case. That it is not navigable at certain seasons of the year seems to be conceded by both parties, but that it should be is not necessary to give character to it as a navigable stream. If for a considerable period of the year its usual and habitual condition is such that the public may rely upon it as a safe and convenient means of transporting over it the logs which are cut from the forest on its banks; if this condition recurs with the season of our usual rains and continues through it, even though occasionally interrupted by a decline of its waters, it is a navigable stream. On the other hand, even though at irregular and uncertain intervals throughout the year, regardless of seasons, it is so swollen by rains that it is temporarily, useful for purposes of transportation, it is not a navigable or floatable stream in such sense as to entitle the public to an easement over its waters. Such we understand to be a fair deduction from the approved text-writers and judicial opinion. Gould on Waters 108, 109; Angelí on Water-Courses 537.

The witnesses for the plaintiff describe Red Creek as a small stream, its depth ordinarily, even in the rainy season, being inconsiderable and wholly insufficient to be of general public use, but when swollen by heavy rains, whether at one season of the year or another, as being for a few hours or for a few days of sufficient volume to “float a steamboat;” but they concur in the declaration that it rapidly subsides, and that in its natural state it has a depth of only a few inches in its shallow parts, rendering it wholly insufficient for any useful purposes as a highway. But the witnesses for the defendant give a wholly different description of the stream. Mr. Smith, one of the defendants, stated that at the time of the trial (when it is conceded it was not abnormally full) it had a depth of from four to five feet. Mr. Hamrick, the other defendant, testified that for eight or nine months in the year it had a floatable capacity for logs, and though we do not understand this witness as meaning that the stream was continually floatable for that length of time, for he speaks of the showing made by his books that one trip of logs extended over two weeks, the fair construction of his testimony leads to the conclusion that he intended to convey the idea that for eight or nine months of each year Red Creek could be used for the transportation of logs, even though not swollen by extraordinary rains. In view of the testimony of the defendants and other witnesses introduced by them, we think the question whether Red Creek is or is not a navigable or floatable stream ought to have been submitted to the jury.

Reversed and remanded.