Oliver v. Klamath Lake Nav. Co.

Mr. Justice King

delivered the opinion of the court.

But two points of law appear to be involved in this controversy, namely: Has the defendant a right as a matter of law to place a wharf in the river or lake, as the case may be; and, if not, can plaintiff maintain a suit to enjoin such obstruction?

1. We think it clearly appears from the testimony adduced that defendant only purchased the property north of Klamath street, and that it is not the owner of any realty south thereof. That this is the legal effect of the conveyances through which it appears the company deraigns title, as well as that it cannot, as a matter of law, insist upon the right to place the wharf or other *99 obstruction in the river or lake, we think settled by this court adversely to defendant’s contention in Grant v. Oregon Nav. Co., 49 Or. 824 ( 90 Pac. 178, 1099 ). It is there held that the grantee’s rights are circumscribed by the description in the deed, of which the town plat from which the description is taken, and to which reference is made, became a part; and that it is within the power of any grantor to sell his riparian rights separately from the lands to which appurtenant, or in making a conveyance of such realty, expressly or impliedly, to reserve such riparian rights, in reference to which the conveyances through which defendant deraigns title specifically describe the property by lots and blocks. This necessarily separated therefrom any riparian rights south of that street, leaving such riparian rights the property of the original grantor and his successors in interest. To the same effect are Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S. 672 (3 Sup. Ct. 445: 4 Sup. Ct. 15: 27 L. Ed. 1070 ); Morris v. United States, 174 U. S. 196 (19 Sup. Ct. 649: 43 L. Ed. 946 ) ; Goodsell v. Lawson, 42 Md. 348 ; Gilbert v. Emerson, 60 Minn. 62 ( 61 N. W. 820 ) ; Kenyon v. Knipe, 2 Wash. 394 ( 27 Pac. 227 : 13 L. R. A. 142).

2. As to the second question, it is well settled that impediments to navigation, unless authorized by some competent power, or by some legal right of the person causing it, are nuisances, and the person causing an obstruction of that character is liable to the person injured, and may, by a suit in equity, brought for the purpose by the person specially injured thereby, be enjoined from placing such obstruction therein; or, in the event the obstruction, or any part thereof, is completed, may have the same abated. 21 Am. & Eng. Enc. Law (2 ed.) 444; Fleischner v. Investment Co., 25 Or. 119 ( 35 Pac. 174 ) ; Blagen v. Smith, 34 Or. 394 ( 56 Pac. 292 : 44 L. R. A. 522) ; Union Power Co. v. Lichty, 42 Or. 563 ( 71 Pac. 1044 ) ; Morton v. Oregon Short Line *100 Ry. Co., 48 Or. 444 ( 87 Pac. 151 , 1046:7 L. R. A. [N. S.] 344: 120 Am. St. Rep. 827 ) ; Kamm v. Normand, 50 Or. 9, 15 ( 91 Pac. 448 : 11 L. R. A. [N. S.] 290) ; Garitee v. M. & C. C. of Baltimore, 53 Md. 422 . The case of Morton v. Oregon Short Line Ry. Co., above cited, so far as the legal principles applicable are concerned, is similar to the one at bar. There the defendant company attempted, with permission of the owner of the adjacent land, to construct a jetty into Snake River, deflecting its course to the injury of Morton, a riparian proprietor below, which proprietor brought suit to enjoin any further extension of the jetty, praying a removal of the part completed, which was denied by the trial court, but granted on appeal. The question as to the navigability of the stream was raised in that case, but not determined. However, Snake River in the vicinity of the point on the stream there involved, has since been held by the Supreme Court of. Idaho to be a navigable stream. Moss v. Ramey, 14 Idaho, 598 ( 95 Pac. 513 ) ; Johnson v. Johnson, 14 Idaho, 516 ( 95 Pac. 499 ).

3. In the case under consideration it conclusively appears that defendant company has no right, by reason of its ownership of the land north of Klamath street or elsewhere, to extend the wharf over the place in dispute, with reference to which it is, in effect, urged that it was done with the consent of the state and public in general, and that plaintiff was not injured, and accordingly has no right to complain. If defendant were a riparian owner to any part of the stream or lake south of Klamath street, and thereby entitled to wharf privileges, and the point were raised as to the extent of such right, a different question would be presented, making it necessary under such circumstances to determine the wharf rights and privileges of each of the contestants and ascertain in connection therewith whether plaintiff’s rights in that respect extend at right angles to the thread of the stream, as held in Montgomery v. Shaver, 40 Or. *101 244 ( 66 Pac. 923 ), or in the manner determined in Columbia Land Co. v. Van Dusen I. Co., 50 Or. 59 ( 91 Pac. 469 : 11 L. R. A. [N. S.] 287), or at right angles to Lake Ewauna, if said lake is distinguishable from the river. But for the purposes of this case it can make no difference where the river ceases and the lake begins, for the navigability of each is conceded throughout, not only in the river and lake in general, but at the place covered by defendant’s proposed wharf. In fact, the latter feature is shown by defendant’s plat and data thereon, and it is unquestioned that in the natural condition of the lake and stream, plaintiff, at all times, has access to and from his property to Link River, while to permit the placing of the obstruction complained of between his warehouse and the main channel would, on account of the water south of the property, in what is called the lake, freezing during the winter months, prevent egress to- and ingress from -the river, while the water on the west between plaintiff’s property and the river has at all times sufficient motion to prevent its freezing to such an extent as to impede navigation. It further appears that the obstruction complained of would naturally tend to check the current in the direction of plaintiff’s property, and thereby materially increase the tendency of the water surrounding his premises to freeze, and correspondingly to obstruct his access to and from the river, which damage alone, to say nothing of the other features named, brings the case within the rule applied in Morton v. Oregon Short Line Ry. Co., 48 Or. 444 ( 87 Pac. 151 , 1046: 7 L. R. A. [N. S.] 344), where it was found that the jetty sought to be enjoined deflected the current in such manner as not only to wash away parts of plaintiff’s lands, but reduce the current to such an extent as to interfere with the running of a ferryboat across the channel partly obstructed, at the same time leaving the channel in such condition that it was unfordable.

*102 It follows that the decree of the lower court should bé reversed and one entered enjoining defendant from placing any further obstructions in the stream or lake at the points indicated, and directing the removal within 90 days from the entry of the mandate herein of any part thereof placed therein; and it is so ordered.

Reversed: Decree Rendered.

Mr. Justice McBride did not sit in this case.