Trullinger v. Howe , 53 Or. 219 ( 1908 )

Mr. Chief Justice Bean

delivered the opinion.

The testimony of both parties was directed, in part, to the point whether the North Yamhill River at or above plaintiffs’ mill is a floatable stream, and whether plaintiffs’ dam is an unlawful obstruction therein. But the determination of these questions is not really necessary to a decision of the issues. If the stream is navigable or floatable, it is so only during the winter months, and the plaintiffs, as riparian proprietors, have a right to maintain a dam across it for their use, provided it does not materially affect or abridge the use of the stream as a highway at such times, as in its natural condition is may be so used. Gould, Waters, § 110;. Hallock v. Suitor, 37 Or. 9 (60 Pac. 384); Chenango Bridge Co. v. Paige, 83 N. Y. 178 (38 Am. Rep. 407); Connecticut River Lum. Co. v. Olcutt Falls Co., 65 N. H. 290 (21 Atl. 1090: 13 L. R. A. 826); A. C. Conn Co. v. Little Suamico Lum. Mfg. Co., 74 Wis. 652 (43 N. W. 660); Parks v. Morse, 52 Me. 260. And defendant has no right to interrupt or retard the natural flow of the water, to plaintiffs’ injury, or to store it, by means of dams and reservoirs, and suddenly discharge the accumulation to their damage. Gould, Waters, § 209; Kamm v. Normand 50 Or. 9 (91 Pac. 448: 11 L. R. A. (N. S.) 290); Slingerland v. International Contracting Co., 169 N. Y. 60 (61 N. E. 995: 56 L. R. A. 494); Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336 (18 Am. Rep. 184). Nor is defendant justified in so using the waters of the stream, even if plaintiffs’ dam is, to some extent, an obstruction to navigation. It is not per se a nuisance or unlawful structure. It is rightfully in the stream, and, if an obstruction at all, it is because it is too high, or proper means have not been provided for the passage of logs over it. If this is so, defendant should proceed, in a proper manner, to have it abated or rely upon an action for damages, if injured thereby. He cannot accumulate large volumes of water above the dam, and by suddenly réleasing it send down immense floods, depositing dirt and debris in plaintiffs’ race, and preventing its use for power purposes. The right of the public to use a navigable or floatable stream in its natural condition is not paramount to the right of a riparian owner to construct dams therein and use the waters for power purposes, so long as he does not materially affect or abridge the public right. The rights of each must be exercised with due regard to the existence and preservation of the rights of the other. The right of passage is, to some extent, necessarily the dominant right, because it is the right to move on or by. It, in the nature of things, cannot be exercised unless the other temporarily yields to it, but it is not an exclusive right, and must not be usurping, excessive, or unreasonable. It must be exercised without unnecessarily interfering with the riparian proprietor, and as modified by his right to make a reasonable use of the stream for his own purposes. Pearson v. Rolfe, 76 Me. 380; White River Log Co. v. Nelson, 45 Mich. 578 (8 N. W. 587, 909; Middleton v. Flat River Booming Co., 27 Mich. 538; Buchanan v. Grand River Log Co., 48 Mich. 364 (12 N. W. 490); Foster v. Spool and Block Co., 79 Me. 508 (11 Atl. 273). If, therefore, the operation of defendant’s splash dams has been such as to materially injure or interfere with plaintiffs’ use of the waters for power purposes, they are entitled to relief. Upon this point there is practically no conflict in the testimony. The reservoir above defendant’s dam in Fairchile Creek has a capacity of about 5,000,000 cubic feet of water, and that in the main stream, a short distance above the mouth of such creek, about 1,250,000. The method of operating these dams is to close the gates and retard the flow of the water until the reservoirs are filled, and then to suddenly open the gates, so that the accumulation of water from both dams will reach the mouth of Fairchile Creek at the same time, thereby raising the water at that point from six to eight feet, and at plaintiffs’ mill, 10 or 12 miles below, from 16 to 24 inches above its natural stage. The waters so discharged necessarily rush down the stream with great violence, eroding banks, and carrying large quantities of mud and debris, which is deposited in sluggish places and especially in plaintiffs’ mill pond and race, where the flow is retarded by their dam. The dams of defendant were, both first operated in the fall of 1906, and continuously from that time until the trial of this suit in January, 1907, often six or eight times a day.

Plaintiff D. P. Trullinger testifies that, prior to the operation of the dams, there was no interference with his power, except occasionally from backwater, and during extremely dry seasons. But since the construction of the dams the race has filled up with mud and debris, and there has been a shortage of water. Plaintiff Carl S. Trullinger says that he has been familiar with the mill and its operation practically all his life, and for some time has been in charge of the mill and light plant; that before defendant’s dams were put in there was no serious trouble in the operation of the mill or light-plant for want of water, but since that time from 12 to 36 inches of dirt and debris has been washed in the race, thereby interfering with the flow of the water therein, and there has been repeated shortage of water while defendant’s reservoirs were being filled. This testimony is substantially undisputed, and shows that the operation of plaintiffs’ mill and power plant has been seriously interfered with by the manner in which defendant has operated his splash dams. This is of itself sufficient to dispose of the case and entitle plaintiffs to relief. We should perhaps stop here; but, in view of the scope the litigation has taken, it may not be improper to indicate briefly our views on some other questions.

It is claimed by plaintiffs that the North Yamhill River at and above their mill is not a navigable or float-able stream. We had occasion in the recent case of Kamm v. Normand, 50 Or. 9 (91 Pac. 448: 11 L. R. A. (N. S.) 290), to define such a stream, and the respective rights of the public and riparian owners thereon. Within the rule announced, the plaintiffs’ position cannot be sustained. Without going into an exhaustive examination of the testimony, it is sufficient that it shows that for at least 10 or 12 miles above plaintiffs’ mill the stream has been successfully used during the winter season for floating logs from the mountains to the mills and markets below for more than 20 years. Plaintiff D. P. Trullinger himself testifies that it was so used from 1880 to 1887 and since that time, that it had been used for running logs before the construction of his present dam, and that he built it “so logs could go over it.” There are many other witnesses who testified to similar use of the stream. Indeed, most, if not all, the witnesses who testified that in their opinion the stream is not navigable or floatable, either on direct or cross-examination, say that it has been so used successfully, and this fact is more valuable as evidence of the character of the stream than their opinions.

Defendant claims that plaintiffs’ dam in its present condition is an unlawful obstruction to the floating of logs, and. we are inclined to think there is some merit in this contention. The dam is constructed of brush, logs, and stone, and is 4 feet high and 60 feet long, with a perpendicular breast on the down-stream side. No special provision, such as an apron or sluiceway, is provided for the passage of logs. It requires, according to the testimony of both plaintiffs, a rise of four or five feet in the river for logs to pass over the dam, while the evidence shows they will float and can be successfully run in the stream on a depth of water of from two to three feet. It therefore requires more water to carry logs over the dam than to float them in the stream, indicating that the dam is an obstruction. Plaintiffs say, however, that they have a right by prescription to maintain the dam at its present height, and in its present condition, even if it does- interfere with navigation. It is doubtful whether a right to maintain an obstruction to navigation in a natural stream can be so acquired. It is true it has been held that the right of the public to a highway on land may be lost by non-user. Grady v. Dundon, 30 Or. 333 (47 Pac. 915); Bayard v. Standard Oil Co., 38 Or. 438 (63 Pac. 614). But such a highway is either established by, and under the control of, public officers, who are charged with the duty of maintaining and keeping it open for the public, and who may lawfully vacate it. If they suffer the highway to be entirely closed or obstructed for a period of time prescribed by the statute of limitations, there is reason for holding that the right of the public to use the highway has been lost. A navigable or floatable river or stream, however, is of common right a highway by nature. It is not created or established by any governmental agency, nor can it be abandoned or discontinued by such agency. It is-therefore doubtful whether the right to impede or interfere with the navigation can be acquired by prescription or adverse user. Collins v. Howard, 65 N. H. 190 (18 Atl. 794); State v. Company, 49 N. H. 240 (6 Am. Rep. 513); Woodruff v. North Bloomfield Gravel Mining Co. et al. (C. C.), 9 Sawy. 441 (18 Fed. 753); People v. Gold Run Ditch & Mining Co., 66 Cal. 138 (4 Pac. 1152: 56 Am. Rep. 80); Stokes & Smith v. Upper Appomatox Co., 3 Leigh (Va.), 318; Rhodes v. Whitehead, 27 Tex. 304 (84 Am. Dec. 681. But, however this may be, plaintiffs never have asserted the right to close the stream or prevent its use for floating logs. On the contrary they have recognized the public easement, and intended to construct their dam “so logs could go over it.” They are, therefore, not in a position to claim the right by prescription to unreasonably interfere with navigation. They may, of course, maintain a dam for the purpose of diverting water for milling or manufacturing purposes, so long as they do not injure other proprietors or unreasonably interfere with the public easement. The respective rights of mill owners and loggers in floatable streams is clearly defined by Mr. Chief Justice Peters in Pearson v. Rolfe, 76 Me. 380, and the parties to this litigation should have no difficulty in adjusting their differences in accordance with the principles announced by him and in this opinion.

The decree of the court below should be reversed, and one entered here to restrain and enjoin defendant from so using his splash dams as to interfere with the use of the waters of the stream by plaintiffs for power purposes.

Reversed: Decree Rendered.