McKinney v. Northcutt

NORTONI, J.

(after stating the facts). — 1. The learned counsel for appellant asks the court to review the finding of facts made by the circuit court and to declare upon the evidence that Indian creek is not a navigable stream and therefore is not subject to public use within the meaning of the law relating to such streams *153 as are capable of floating to market tbe products of the forest, mines and tillage of the soil along their courses. This being a case appealing to the equitable powers of the court, there can be no doubt that this court has the right to review such finding and that it is not precluded by the finding of facts made by the chancellor, although in cases where, as in this, witnesses testify orally on an issue of fact, the appellate court will defer somewhat to the finding of the chancellor, inasmuch as the opportunities of the trial court to see and hear the witnesses on the stand and to judge of the probable truth or falsity of the evidence is superior to the opportunities of this court to arrive thereat from the bare record. [Benne v. Schnecko, 100 Mo. 250, 13 S. W. 82; Mathis v. O’Neil, 94 Mo. 530, 6 S. W. 253; Berry v. Hartzell, 91 Mo. 138, 3 S. W. 582; Springer v. Kleinsorge, 83 Mo. 159; Bushong v. Taylor, 82 Mo. 666; Erskine v. Lowenstein, 82 Mo. 309; Chouteau v. Allen, 70 Mo. 336.]

The appellant has failed to incorporate all of the evidence in the record before us. Under such circumstances it would be most unfair to the parties to the suit, as well as to the trial court and likewise unfair to this court, for us to attempt to review the finding of facts when all of such facts are not open to our perusal and observation. It would be impossible to arrive at a just conclusion under such circumstances. It is an invariable presumption of this court that the proceedings of an inferior court are correct unless the contrary appears, and it devolves upon him ascribing error to the trial court to show it affirmatively here; but in the absence of such showing, it is always presumed that the judicial action of the court below is correct and that a solemn judicial finding upon facts submitted is amply supported by such facts unless the record clearly shows the contrary thereof to be true. As the rule is well settled in practice that he who seeks to reverse such finding must put his finger on the error of the court below and point out wherein it is unsupported, or at least, bring the whole *154 case here in order that this court may be fully enlightened in that behalf before it would be justified in overturning this well-founded presumption of correct action in holding that the judgment was unsupported by the evidence. In view of the state of the record before us, we decline to examine the finding of facts. [Christy’s Admr. v. Meyer, 21 Mo. 112; Wentzville Tobacco Co. v. Walker, 123 Mo. 662, 27 S. W. 639; U. S. v. Gamble & Bates, 10 Mo. 457; Zugg v. Arnold, 75 Mo. App. 68.]

What has been said applies with equal force to the finding of the court on the allegation of confederation and conspiracy among the several defendants and their alleged joint action which would render them jointly liable, if liable at all, in this case, inasmuch as all the evidence in support thereof is not before this court, and especially is this true with regard to the alleged notice admitted on both sides, to have been posted by defendants, but the contents of which and its exact purport,, appears to have been omitted from the bill of exceptions. Therefore, we must presume that the court below acted rightly in finding a confederation to exist among the defendants whereby their joint liability is established.

2. In England, only waters in which the tide ebbs and flows are technically navigable, and this rule seems to be adhered to in a few jurisdictions of this country. A river or creek in which the tide ebbs and flows is not, however, navigable unless it is actually capable of navigation. In the United States, it would seem to be a matter of no great practical importance which rule obtains, for in all of the states of the Union the public has the same right, so far as regards the use of waters for the purposes of navigation, whether they are tidal or non-tidal, if it is actually navigable. In this country, the capability of use by the public for the purposes of the transportation of commerce rather than the extent and manner of that use, affords the true criterion of the navigability of waters. If they are capable in their natural state, of being used for the purpose of com *155 merce, no matter in -what mode the commerce may be conducted, they are navigable in fact, and become, in law, public highways. It is therefore laid down in 21 American and English Encyclopedia of Law (2 Ed.), at page 428, as follows:

“Streams of sufficient capacity to float logs or timber to market have been frequently declared to be navigable in fact. And this has been said to be true though at some particular point in their course, the streams are not of sufficient capacity to float logs without manual aid from the shore. Waters, to be navigable, must be so far navigable or floatable in their natural state and in their ordinary capacity as to be of public use in the transportation of property.”

Waters which can be made floatable only by artificial means are not regarded as public highways. Nor is it necessary to constitute a stream navigable for floating and rafting within the law that they should be capable of continuous use during the whole year for that purpose. It is sufficient to render a stream navigable within the sense under contemplation, if, as a result of natural causes, it be capable of floatage or other navigation periodically during the year, and so continue long enough at each period to render it susceptible to beneficial use by the public. [21 Amer. & Eng. Ency. of Law (2 Ed.), 428-429.]

Judge Cooley says: “In this country there has been a very general disposition to consider all streams public which are useful as channels for commerce, wherever they are found of sufficient capacity to float to market the products of the mines, of the forests or of the tillage of the country through which they flow. And if a stream is of sufficient capacity for the floating of rafts and logs in the condition in which it generally appears by nature, it will be regarded as public, notwithstanding there may be times when it becomes too dry and shallow for the purpose. The capacity of a stream which generally appears by the nature, amount, importance and necessity *156 of the business done upon it, must be a criterion.” [Cooley’s Constitutional Limitations (7 Ed.), 861.]

Mr. Gould says: “In this country, where this question is more important than in England, notwithstanding the conflict respecting the title to large fresh-water rivers, the authorities agree that streams which, in their natural condition, are only useful for rafting purposes during the whole or part of each year, are highways for that purpose, and that the title of the riparian owners to the beds of such streams is subject to this right of passage.” [Gould on Waters (3 Ed.), sec. 107.]

Farnham on Waters says: “Streams which are capable of floating to market the products of the soil along their banks are navigable within the rule subjecting a navigable stream to public use. The public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting in a condition fit for market the products of the forests, mines, or of the tillage of the soil upon its banks. It is not essential that the property to be transported shall be carried in vessels or be guided by the hand of man, if it can safely be carried without such guidance. Nor is it necessary that the stream shall be capable of navigation against its current. Nor that it shall be navigable at all seasons of the year, it being sufficient that it becomes navigable periodically from natural causes. But in order to come within the rale the stream must be actually capable of some profitable use. The capacity as shown by the use to which it is put is the true criterion by which to judge the question of navigability. It is sufficient if it is capable of floating vessels, boats or other crafts, or rafts of logs, or logs in quantities to make it of commercial value. The fact that the logs must be floated without being formed into rafts is not sufficient to destroy its navigable character; but the width of the stream may diminish to such an extent that only a single log at a time will float. Such a stream would be of no commercial value because the cost in time and labor in *157 getting quantities of logs through would destroy its usefulness. Such streams are not subject to public use. If the stream is capable of floating to a profitable extent it is navigable, and a public highway. The stream must, however, be capable of use in its natural state for it is not subject to public use if improvement is necessary to fit it for such use. Most streams fluctuate during the season of melting snow and the frequent fall of rains, and in periods of drouths becoming in some instances almost dry. The fact that in dry season the stream is not capable of use will not prevent its being used at other times when it is capable of it. But the period of capacity must be sufficiently regular and continued to make the stream of commercial importance. The stream may be used whenever its capacity is sufficient for that purpose. If the stream cannot be used without traveling along its banks to aid the passage of the logs it is not a navigable stream. But if the general character of the stream is such that it will float logs without any aid from the banks, the mere fact that persons using it find it convenient to go upon the banks and in fact, do so, will not destroy the navigable character of the stream. A way of necessity cannot be claimed to float logs down a stream if there are other means of getting them to market. The owners of the banks have certain rights in the stream which cannot be destroyed by the use of it for navigation. When the stream is in a condition to be used, the riparian owner cannot do anything that will interfere with the use. But the right of navigation does not authorize interference with the bed of the stream or with the banks or the destruction of property on the banks. The right to float is but a right of passage, and includes only such rights as are incident to the use of the stream for that purpose and necessary to render such use reasonably available.” [Farnham on Water & Water Rights (vol. 1.), sec. 25.]

So we find that by concurrence of authorities, a stream capable of transporting rafts of railroad ties, as *158 in this case, for several months during the spring of the year, without the aid of men on the banks thereof, is navigable within the meaning of the law for that purpose and subject to the use of the public therefor, and the rights of the riparian owners to the soil adjacent to and underlying the bed of such stream are subject to this right or easement in the public, which rests upon the necessities of commerce; and where, as in the case at bar, it appears that there was no other practical route by which the ties could be transported to market, the adjacent owners would have no right to interfere with one using the stream for the commercial purposes indicated. Respondent had a right to occupy the stream in floating his ties to market without inflicting injury upon the adjacent property, and the appellants had no right to obstruct said stream as shown in the evidence, or otherwise interfere with respondent in the exercise of his privilege. The views herein expressed are abundantly supported by the courts of this country as will appear by reference to the following cases: Brown v. Chadbourne, 31 Me. 9; Bucki v. Cone, 6 South. Rep. (Fla.) 160; TenEyck v. Town of Warwick et al., 75 Hun 562; Webster et al. v. Harris, 59 L. R. A. (Tenn.) 324; Lewis v. Coffee County, 77 Ala. 190; Little Rock, etc., Ry. Co. v. Brooks et al., 39 Ark. 403; Sullivan v. Spotswood, 2 South. Rep. (Ala.) 716; Hickok et al. v. Hine, 23 Ohio 523; Commissioners of Burke County v. Catawba Lumber Co., 21 S. E. (N. C.) 941; State v. Baum, 128 N. C. 600; Heyward v. Farmer’s Mining Co. et al., 19 S. E. (S. C.) 28, L. R. A. 42; Moore v. Sanbourne, 2 Mich. 519; Lamprey v. State of Miss., 18 L. R. A. (Minn.) 670. The Supreme Court of Wisconsin has well said: “The use of rivers and smaller streams for floatage of logs is essential to the continued prosperity of the immense.lumber and industrial interests of northern Wisconsin.” [Keater Lumber Co. v. St. Croix Boom Corp., 72 Wis. 80.] And it is upon this idea that the right to such use of the floatable streams is vested in the public. The same can truthfully *159 be said of the industrial interests of this State. While our lumber and timber industry is not so great nor so far-famed as that of Wisconsin, it is one of the most important industries of the State and it is a matter of common knowledge that a large section of southern Missouri, traversed by the Ozark mountains, is rich in timber and poor in its facilities for transporting it. It is essential, therefore, in many instances, to rely upon the smaller streams in order to transport the products of the country to market. This condition should be recognized and considered by the courts with a view not only to aid the industry itself, but as well to facilitate the progress and development of the State and afford an expeditious means of transportation to the end that the citizen, in the one instance, may convey his property to market with a reasonable expenditure, and that the citizens of the State, in the second instance, may enjoy the fruits of the forests, mines and fields without being called upon to recoup extraordinary charges for transportation. This seems to be the underlying principle upon which rests the law authorizing the public use of smaller streams passing through private property.

3. The question of whether or not the stream is navigable for the purposes of rafting and floating the products of the forests, mines and fields along its course, is ordinarily one of fact for the jury and the burden of establishing such fact and its commercial importance rests upon the party affirming it to be true, as in ordinary cases. There are cases, however, in which the courts can and do take judicial notice of the navigability of streams. The rule, however, applies only to fresh water streams as all tide water is prima facie considered to be navigable and the burden in that case is on the party alleging the contrary. [21 Amer. & Eng. Ency. of Law (2 Ed.), 429; 1 Farnham on Water & Water Rights, sec. 26; Bucki v. Cone, 6 South. Rep. (Fla.) 160; Little Rock, etc., Ry. Co. v. Brooks et al., 39 Ark. 403; State v. Baum, 128 N. C. 600.]

*160 The courts would certainly take judicial notice of the navigability of the Mississippi, Missouri, Gasconade and Osage, and no doubt other of our principal rivers, inasmuch as the character of these streams is such that their navigable capacity for such purposes is a matter of common knowledge. [Farnham on 'Water & Water Rights, sec. 26.] And in view of the fact that our public surveys terminate on the Missouri river and on the Osage as far up as Osceola, and on the Gasconade, for some distance, the government retaining the title to the bed of such streams, this being a governmental recognition of the navigable capacity of such streams for steamboats in the carriage and transportation of our commerce, it has been referred to by our Supreme Court as the probable proper test of their navigability for that purpose since we have no navigable streams in this western country which come within the ancient common and civil law definition thereof. [Benson v. Morrow, 61 Mo. 349.]

Be that as it may, however, the question of the navigability of Indian creek for the purpose alleged in the bill and the issues in this case was a question of fact for the trial court, and as such the parties treated it, introduced evidence thereon and the court found the fact to be that it was a navigable stream at the point in controversy and on to the Meramec river. Enough- appears in the record to show that such finding is supported by substantial evidence and in view of the fact that all of the evidence pro and con on the subject is not before us, this finding of the learned trial judge will be affirmed unless there appears other sufficient reasons for a reversal of the judgment.

4. It is insisted that the petition fails to state facts sufficient to constitute a cause of action. The sufficiency thereof was not challenged by demurrer. It was raised by oral objection at the opening of the trial. Appellants having answered over and gone to trial, all objections as to the sufficiency of the petition were thereby waived save its sufficiency to support the judgment. Howe v. *161 Ins. Co., 75 Mo. App. 66. The provisions of on statute of jeofails (sec. 672, R. S. 1899), and the adjudicated cases on the subject, certainly render the petition good after verdict. When once a party has answered over and gone to trial, it is only where the petition wholly fails to state a cause of action that a reversal can be had therefor after verdict. In case the petition wholly fails to state facts entitling plaintiff to relief, the objection is equally fatal after verdict as is a total want of jurisdiction over the subject-matter. [Weill v. Green County, 69 Mo. 286.] But the mere fact that the petition is defective and subject to a general demurrer, does not render it insufficient to support a verdict. The well-settled rule is that if a material matter be omitted from a petition, but is necessarily implied from what is therein stated, the defect is cured after verdict. This doctrine rests upon the presumption that plaintiff proved on the trial the facts imperfectly alleged, the existence of which he was required to prove before the court could give him a finding. [People’s Bank v. Scalzo, 127 Mo. 189, 29 S. W. 1032.] The facts stated in the petition are sufficient to support the judgment and the assignment must be ruled against appellants.

From what has been said, it is apparent that it is quite unnecessary to review separately the several matters presented in the briefs. It would serve no purpose but to prolong the opinion.

Finding no reversible error in the record, the judgment is affirmed. It is so ordered.

All concur.