Stump v. McNairy

The eoulhiued and uninterrupted use, by the public for twenty years, of a stream for purposes of navigation, constitutes it a public thoroughfare, and the obstruction of it a nuisance, which any one may abate*

' This is an action of trespass, brought in the Circuit Court of Davidson county, by Stump and Ewing against N. A. Mc-Nairy. Defendant pleaded not guilty, and the case came on for trial before Judge Maney, and a jury of Davidson county. Stump and Ewing erected a fish trap across a small stream of water running into Cumberland river within the Corporation limits of the town of Nashville. This fish trap was erected by the permission of the owners of the soil on the banks of the stream, and by a license from the Corporation. The stream was in ordinary times only seven or eight feet wide, and not deep enough for any purpose of navigation but once or twice a year, or perhaps oftener. When the Cumberland river was high the water flowed up said stream, and during such times of flood the stream was used for the purpose of conveying from the river to high points of land, rafts of lumber and word, &c. This has been the use of the stream for upwards of twenty years. The defendant, at a time of flood, wishing to have a raft of timber floated up the stream, and finding its progress obstructed by the fish trap, removed it as a nuisance. For this alleged trespass this suit was instituted. The judge charged the jury, that they should not regard the Corporation license, and though there was no law declaring the stream navigable, yet if there had been a constant and uninterrupted use of this stream for twenty years, for the purposes of navigation, such as those for which McNairy used it, it was a dedication of it to the public, and the stream became a public thoroughfare, and any obstruction of it was a nuisance, which might be legally abated by any one. The jury found the defendant not guilty, and a judgment was entered accordingly. The plaintiffs appealed. cited Angelí on Water Courses, 201, 202: 10 John. 236: 5 Wend.: Angelí, 99, 213: 1st Hump. 524.