Brown v. Chadbourne

The rule of the common law, that riparian proprietors own to the thread of fresh water rivers, has been adopted in this State. A stream, which, in its natural condition, is capable of being comi&only and generally useful for floating boats, rafts or logs, for any useful purpose of agriculture or trade, though it be private property, and though it be not strietly navigable, is subject to the public use, as a passage way. Though the adaptation of tbs stream to such use may not be continuous at all seasons, and in all its conditions, yet the public right attaches, and maybe exercised whenever opportunities occur. "When a stream is inherently, and in its nature, capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts or logs, the public easement exists. In such a stream, the right in tho public exists, notwithstanding it may be necessary for persons floating logs thereon, to use its banks. Where the proprietor of such a stream, by means of a dam and of an accumulation of his logs above the dam, has, under claim of a right to control the stream, designedly obstructed the running of the plaintiff’s logs, and refused to make any provision for the passage of them, the plaintiff is justified in repairing and opening the proprietor’s sluices around the dam, for that purpose; provided that that be the mode of effecting the object, least detrimental to the proprietor. In such a case, in a suit against the proprietor for such injury, tho plaintiff may recover for the damage, and, among the items recovered, may be the expenses of booming the defendant’s logs, and of repairing his sluiees.

Case for maintaining a dam across Little river, and thereby obstructing the passage of the plaintiff’s logs. It is a fresh water river, three miles long, flowing from Boyden’s lake to tide water. Its width varies from seven or eight feet to three or four rods. The defendant owns land on both sides of the river, and has a dam and mills there, and a large quantity of his logs were resting upon the dam. The plaintiff had a quantity of logs in the river, for the purpose of being driven to his mill, below the defendant’s dam. But they were prevented from passing, by means of the mass of the defendant’s logs above his 'dam. The defendant was requested to remove the obstruction, or provide some passage way for the plaintiff’s logs, but declined to do so, insisting that the plaintiff had no right to drive logs on that part of the stream, and forbidding him to drive them. The plaintiff thereupon boomed the defendant’s logs, and opened and repaired some old sluice ways, belonging to the defendant, around the dam, and drove his logs through the same. To recover for the hindrances and expenses in getting his logs by the dam, the plaintiff brings this suit. The defendant contended that, at the place where his lands lay, the river is wholly his property ,• that the public have no right of passing upon or using it, and that the plaintiff had no right to run logs there. Before the case was committed to the jury, the plaintiff disclaimed any right arising from prescription or user by himself or others. But he insisted throughout, that, from the intrinsic capabilities of the river, any citizen had the right to use it for running logs. Upon the question as to the character and capabilities of the river, much testimony was introduced by both parties. It appeared from the evidence that, in order to drive logs on the river, the banks were commonly entered upon and used by the persons employed, and that, in some states of the stream, dams are necessary, in order to obtain sufficient water for floating the lumber. At the trial before Wells, J., among other requests, (which had become immaterial, by reason of the plaintiffs disclaiming any rights from user or prescription,) the defendant requested the following instructions to be given to the jury. 1. That this being a fresh water stream, the presumption is, that it is private property, and that the burden is on the plaintiff to establish the contrary, by satisfactory proof that it is a navigable or floatable river. 2. To constitute Little river a navigable or floatable stream, it must be shown to be capable, in its ordinary and natural state, of floating logs, boats and rafts ; and it is not enough to prove that logs may be carried down at certain seasons of the year, when the stream is raised by a freshet. 3. If it appears that dams or artificial means are necessary, in order to float down logs, or that^ it was necessary to clear the stream of natural obstructions, before logs could be driven, the jury are not at liberty to find that the plaintiff had. a right to use the river. 4. The plaintiff has no right to use the banks of this stream for driving logs, and therefore, if such use is necessary for driving logs, the plaintiff has no right to drive the stream. 5. If it should be held, that this stream is a navigable one in time of freshet, and thus, at such times, a common highway ; but not capable, in its ordinary state, of floating logs, the plaintiff would have no right to use it as a highway, except in times of freshet; and if, at the time alleged in plaintiff’s writ, the stream was in its ordinary condition, and not capable of floating logs, he cannot recover. 6. The defendant’s prohibition to pass his dam, having been disregarded by plaintiff, is no ground for the recovery of damages, nor is the fact that defendant’s sluices were out of repair ; and if it is found that the plaintiff took the power into his own hands, and by forcible means carried his logs by the defendant’s dams, he cannot recover in this action. 7. The plaintiff cannot, in this action, recover for money expended in booming the defendant’s logs or repairing his sluices, nor for any other obstruction than that, occasioned by ■defendant’s dams. 8. The plaintiff cannot recover for any obstructions occasioned by defendant’s logs, unless he shows that defendant had a reasonable time after they were driven to his pond, to boom or remove them, and that he refused to do it. The second, fourth and fifth requested instructions were refused, the first and third were given. The first clause of the sixth was given, and the residue of it refused. The seventh and eighth were given with the qualification that, if Little river was found to be a public stream, each one must use it so as not wilfully and intentionally to obstruct it; that if the defendant filled the stream for the purpose of preventing the plaintiff’s passage with his logs, and there was no way of getting by, but by removing the defendant’s logs, the plaintiff might, under the declaration in this writ, recover the expense of removing them. In relation to damages, the jury were instructed, that if Little river was a public stream, no one, but by authority of law, could obstruct it, and plaintiff would have had a right to cut away the defendant’s dam, if he could not otherwise run his logs ; but if it was the best and cheapest mode of getting by the dam, and less damage to defendant would be done by repairing defendant’s sluices and using them, the plaintiff might make repairs on them and recover the expense in this action ; that the defendant had an equal right with the plaintiff to put-his logs into this stream, and plaintiff could not recover for the detention, occasioned by defendant’s logs, if both parties acted fairly, and in that case, plaintiff could not recover for removing the logs of the defendant; but if the defendant insisted upon a right to control the stream, and filled the stream with his logs, to obstruct the plaintiff’s logs, then the plaintiff might, in this action, recover for his expenditures in the booming of defendant’s logs ; that the declaration in the writ was sufficient to authorize the recovery of such damage. The Judge further instructed the jury that it was unallowable to hold that streams, merely because capable of being used only in times of freshet, are therefore private streams ; that though the jury were satisfied that Little river was capable of being used lor running logs in times of freshet only, that circumstance would not prevent it from being a public stream, although in the ordinary state of water, it was not sufficient for such purposes; that, if it was necessary to go on the banks more or less for the purpose of driving logs in Little river, that fact would not take from the stream its public character, if they found it capable in other respects of being used as a public stream; that, with regard to the removal of obstructions from this stream, it must appear that the stream in its natural condition was capable of being used for running logs; and that if what had been done in removing obstructions had only improved, but did not create the capability, the public right would not be impaired by such improvements. The verdict was for the plaintiff for $350, and the defendant excepted. The fresh water rivers in this State, that are of public use, owe that character to prescription. Spring v. Chase al., 2 Dane’s Abr. 696, chap. 68, a. 4, § 2. But if in some countries, the public right be original and inherent in such rivers as are of sufficient volume to be, in fact, ‘navigable ; such right has been modified in this State and Massachusetts. The right of erecting dams and mills, and thereby obstructing such fresh water rivers, has been long recognized, and has become a common law right. Of such public importance is the milling interest regarded, that it has always been the policy of the law to favor and protect it, as only great public interests have been. Ancient Charters, p. 388, chap. 98, p. 404, chap. 111. Parker, J. in Ed-son v. McMaster, 1 Kerr. 501; Massachusetts Acts of 1796 and 8, vol. 2, p. 729 and 814: Acts of Maine, chap. 45, 261 and 437 ; Rev. Stat. chap. 126 ; Shepley, in argument in Berry v. Carle, 3 Greenl. 269; Sullivan’s Land Titles, p. 276. The evidence shows that Little river is of importance for milling purposes, but of none or of very trifling value as a way. The law recognizes a class of rivers, which are private, the property of individuals, and not subject to public use. The doctrine contended for by plaintiff, annihilates such a class. The declaration claims for obstructions by dams and not by logs. S. Greenle.af, of Massachusetts, on the same side. By common law, the entire property in Little river, its banks and bed, is in the riparian proprietors. They are entitled to control its use at their pleasure. If the public have any easement or service therein, the burden of proof is in the plaintiff to establish it. Hale de jure Maris, chap. 1; 6 Cow. 537 ; Angelí on Water Courses, chap. 7, 1, p. 201, 202 ; Schutts on Aquatic Rights, p. [136] ; Wadsworth v. Smith, 2 Fairf. 281. It is not a navigable river ; this term is applicable only to tide waters, and it is such rivers only, that are public rivers. Angelí on Tide Waters, p. 73 — 79, 2d ed. and cases. The public right to the use or service of fresh water rivers, depends on their general character and fitness, at all seasons of the year, in their natural state, for the passage of boats and the transportation of property. Small streams not answering this description, are exclusively and entirely private property. To hold that a river or stream becomes public during a freshet, is to admit that it is private while there is no freshet, a doctrine both dangerous and unsound: — dangerous, because it leaves the rights of parties in confusion and uncertainty : — unsound, because it gives to one, a way over another’s land, whenever it is highly for his advantage ; and because of the unlimited and mischievous extent to which it goes in its application. In order to make even tide waters navigable, so as to entitle the public to use them freely, they must be navigable to some useful purpose of trade or agriculture ; not only at times of extraordinary flood, but at all times of the year, and in the ordinary state of the water. The known differences of opinion, as to the extent of the term navigable, and whether it applies to fresh water rivers, relates only to the ownership of the bed of the river, or to the exclusive right of Ashing, and not to the point now in issue. But even in this respect, the weight of authority is with the defendant. But the right of the public to use navigable waters, does not give them any right to travel on the banks ; this right must result from grant or prescription. The right of the State is restricted to the shore ; that is, the land that is usually overflowed at ordinary tides. Ball, v. Herbert, 3 T. R. 253 ; Bird v. Smith, 8 Watts, 234; Morgan v. Reading, 3 ; Smead v. Marsh, 366; also Scott v. Wilson, 3 N. H. 324, 325. The same doctrine applies to public fresh water streams. Rivers and streams, therefore, which cannot be used for boating and for floating lumber, without traveling upon the banks, are not among public rivers or ways. To give them this character, they must be capable of being used for valuable purposes of trade or agriculture, at all times and without any aid or appliances from the bank. Berry v. Carle, 3 Greenl. 269 ; Wadsworth v. Smith, 2 Fairf. 280, 281, quod nota; French v. Camp, 6 Shepl. 434. Whether this public right in fresh water rivers, is original and inherent, or dependent on long usage, is a question not settled, but involved in no little uncertainty. In the New England States, the chief stress is laid on usage and custom, as its sole foundation. 3 Greenl. 273 ; 3 N. Hamp. 325. Little river, then, is only one of those little streams, mentioned by Parris, J. in Wadsworth v. Smith, 2 Fairf. 281, which are not floatable, &c. It is also respectfully insisted that there was error in the refusal of the Judge to instruct the jury that, to constitute it a public river, it must be capable to float logs and to be used for purposes of boating, and in its ordinary and natural state, and not in times of freshet alone; that the plaintiff had no right to use the banks of the stream, and that if such use was necessary to the use of the water, the plaintiff had no title to it as a public river ; and that, if the river at the time alleged, was in its ordinary state, and not capable of floating logs, the plaintiff could not recover. Our view is, that the jury should be instructed to inquire whether the river, in its natural state, was capable of being-used for the passage of boats, rafts and logs, at all seasons, and all states of the water, and this without the necessity of any resort to the banks, either for towing paths or other purposes ; in which case only would it be, in its character, a public river. The jury were instructed, that, if the passage of the plaintiff’s logs was unlawfully obstructed in the river by the defendant, then the plaintiff had a right to convey them, over the defendant’s land, and through his sluices, which were confessedly his private property, and might recover the expense of putting the sluices hi order for that purpose. But this, it is conceived, is not quite correct. For, to justify going over private property, in order to avoid an obstruction in a public highway, it must appear to be insurmountable. If the defendant’s dam unlawfully obstructed the river, and the river was public, the plaintiff should have cut away the dam. It is not for the plaintiff to say, that the course he took was less, expensive to defendant. 1. The rights of private property, in fresh water rivers, above the tide, is held in servitude to the jus publicum. If Little river was naturally of sufficient size, to float boats or mill logs, the public have a right to its free use, for that purpose, unincumbered with dams, sluices, or tolls. The law nowhere defines the character of a stream, by ad-measurement of its volume. The true inquiry is, can the stream be used, for floating logs, boats and rafts on its surface ? That Little river is of this description, is settled by the verdict. f The position, that a stream, in order to be subject to the jus publicum, must, at its ordinary and natural pitch of water, independent of spring freshets, be of sufficient magnitude, to float boats and logs, is not sound. The quantity of water flowing in a stream, is ever varying, dependent on atmospherical influences. The spring freshets on our streams, come as regular as the budding of the trees, only varying in degree. Many of the great rivers of the West, upon which float hundreds of steamboats, are said to he fordable by footmen at certain seasons of the year. This great common law right, of, using as a public highway, all the streams in this State, susceptible of floating a log to market, lies at the bottom of the public prosperity. The hundreds of small streams, which our lumbermen annually ascend, for winter operations, and which in the freshet season, hear back to market the fruits of their industry, ought to be public highways. It may be difficult, in some instances, perhaps, to define the precise points, on the streams, which converge into rivers, where this public highway ceases. But we contend for the broad common law doctrine, that any stream, which at any season of swollen floods, can be practically and profitably used, in floating logs to market, is a public higb.way. 21 Pick. 344. But this case is relieved from any question of this sort. The source of Little river is not from small springs. It is the natural outlet of Boyden’s lake. 2. The defendant’s position, that the public have no right to drive logs upon the stream, if in doing it, there is a necessity to use the banks,’ is unsound. It proves too much, for in our largest rivers, logs are lodged upon the banks. To use the banks, and to go upon the banks, for the purpose of removing lumber, lodged there, is a right incident to the way. 5 Pick. 199, see p. 202. Our statute, chap. 67, fully recognizes this right, and by highly penal provisions, protects the owner of such property, thus situated, against trespassers upon it, “ lying and being, in any river, pond, bay, stream or inlet, or on, or near, the bank, or shore thereof.” Here is no distinction, as to the size of the stream or inlet. This statute is a legislative sanction, to the right of using, as common highways, all streams or bodies of water, which may be used for floating logs. 3. Damages. If a party abate a nuisance himself, he shall not have his action of damage, for that is his remedy. Chap. 13, 3 Black, p. 220. But the party injured, may have his remedy, for his damage, before abating it. The defendant’s dam constituted the nuisance. The plaintiff did not abate it. 21 Pick. 344. It is alleged in the declaration, and the evidence tended to prove, that defendant acted maliciously, that is, he did more than the obstructions in and of themselves would do, to injure the plaintiff, by oppressively and wantonly hoisting his gates, to draw off the water, and thereby preventing the plaintiff from sluicing his logs. Defendant ought not to complain of the plaintiff, for sluicing the logs, which was a course least hurtful ’to the defendant.