Carter v. Thurston , 58 N.H. 104 ( 1877 )

The right of the public use in American rivers and streams depends, not upon their navigability, in the technical sense of the term, as defined by the common law (Hall on the Sea Shore 3, 4, 13; Attorney-General v. Chambers, 4 DeG. M. G. 206 — the ebb and flow of the tide is not the test), but upon their capacity for trade and business. The public easement is not, as was formerly inferred by our courts (Scott v. Willson,3 N.H. 321, 325), founded upon usage, custom, or prescription. Any stream capable of being generally and commonly useful for some purpose of trade, and the transportation of property, whether by steamers, or sailing vessels, or oar-boats, or rafts, is a public stream. The facts found by the referee show that Clear Stream is naturally capable of floating logs at some times every year, and to a considerable extent, and that it is reasonably and substantially useful to the public for that kind of navigation. It is therefore a public highway. Lord Hale's De Jure Maris, cap. I, II, III; Royal Fishery in the River Banne, Davies 57; Angell on Highways, ss. 53-75; Hall on the Sea Shore 4-14; Wadsworth v. Smith, 2 Fairf. 278; Brown v. Chadbourne, 31 Me. 9; Moore v. Sanborne, 2 Mich. 519; Rowe v. Granite Bridge Corp., 21 Pick. 344; The Montello, 20 Wall. 430, 442; Thompson v. Androscoggin Co., 54 N.H. 545, 548, 549.

The defendants, therefore, had the right to use the stream in a reasonable and proper manner for floating their logs. What is a reasonable use must depend upon a variety of conditions. If "shutting down the gates and holding the water, and discharging it in unusual quantities upon the drives below," was an unreasonable use of the stream, and this unreasonable conduct "forced the logs out upon the plaintiff's meadow," the defendants are responsible for the damage thus occasioned. The evidence concerning the manner of the use of the dams was properly received. But if the logs were cast upon the shore not by reason of an improper use of the stream, but by accident and without any fault of the defendants, they are not responsible at common law for the damage thus occasioned. Such streams, as well as our larger rivers, will as experience has universally shown, from their windings and the rush of their waters, especially in times of freshets, cast floating logs upon the shores and banks. And the right of the public and of the defendants to the use of this stream for the purpose of floating their logs, involves the right of going upon the land of riparian owners for the purpose of reclaiming the logs that may have been washed ashore. Such incidental necessity neither enlarges nor diminishes the natural capacity of the stream, in a legal sense, nor in any way affects its public character. This right of pursuit and reclamation rests upon the same natural right as that which permits the owner of cattle to pursue into an adjoining field and recover hiss beasts straying from the highway; but in the pursuit and recovery of his cattle or his logs, the owner must do no unnecessary damage, and is responsible for any excess or abuse of his right. This right of reclaiming stranded logs is a common law right, a natural right, incident to the right of navigation. Hall on the Sea Shore 48; Phear on Rights of Water 52; Mayor of Colchester v. Brooke, 7 Q. B. 339; Eaton v. The B. C. M. Railroad, 51 N.H. 504, 530; Brown v. Collins,53 N.H. 442, 449; Thompson v. Androscoggin Co., 54 N.H. 545, 558; Treat v. Lord, 42 Me. 563; Rogers v. Judd, 5 Vt. 223: Forster v. Juniata Bridge Co., 16 Pa. St. 393.

Whether the plaintiff would have the right to enter upon the defendants' land to recover his logs, wrongfully placed there through a negligent or unreasonable use of the stream (Hoit v. Stratton Mills, 54 N.H. 109, 116; Aldrich v. Wright, 53 N.H. 398), is a question not raised by the case. It does not appear that any damages were given or claimed for a wrongful entry.

The plaintiff's opinion of the amount of damage sustained was properly received in evidence. Opinions concerning the value of property are admissible from witnesses found qualified to give opinions on the subject. It was competent for the plaintiff to express his opinion of the value of his land just before its invasion, and immediately after the removal of the logs, and to express all opinion obtained by the arithmetical process of subtraction. Where land is taken for railroad purposes, witnesses acquainted with the land and its value may state their opinions as to its value immediately before taking the same and immediately thereafter, and the amount of damages done to the land by such taking. Curtis v. Railroad,20 Minn. 28; Sherwood v. Railroad, 21 Minn. 127.

The amount of the damages could be ascertained from the best accessible evidence. In the circumstances, a view would have conveyed but an unsatisfactory impression. Opinions of witnesses, derived from observation, are always admissible in evidence, when, from the nature of the subject under investigation, no better evidence can be obtained. Hardy v. Merrill,56 N.H. 227, 241, and cases cited.

Exceptions overruled.

BINGHAM, J., did not sit.