23 Wash. 347, 63 P. 239 GRIFFITH V. HOLMAN (S. Ct. 1900).

           THOMAS S. GRIFFITH et ux., Respondents,
                               vs.
                     F. J. HOLMAN, Appellant

                          No. 3494
                SUPREME COURT OF WASHINGTON
                    
23 Wash. 347, 63 P. 239
                    December 3, 1900, Decided

                              
Appeal from Superior Court, Spokane County. -- Hon. WILLIAM E.
                     RICHARDSON, Judge.

PUBLIC NUISANCE -- ABATEMENT.
A public nuisance can be abated only by a public officer, except
where the party who desires to abate it has some special interest
in the abatement which is different from and greater than the
interest of the community.
NON-NAVIGABLE STREAMS.
An unmeandered fresh-water river averaging in width about forty
feet, and in depth about four feet during high water and two feet
during low water, in some places during the low stage being as
shallow as six inches, and which has never been navigated except
by row boats of ordinary size, run up and down the river by
persons fishing for pleasure, is a non-navigable stream.
NON-NAVIGABLE STREAMS -- RIGHTS OF RIPARIAN PROPRIETOR -- RIGHT
OF FISHERY.
The riparian proprietor upon the banks of a non-navigable,
fresh-water stream, owns the exclusive right of fishery in the
waters flowing opposite his land, as far as the middle of the
stream.
NON-NAVIGABLE STREAMS -- RIGHT TO FENCE.
One who owns both banks along a non-navigable stream has title
also to the land in the bed of the stream, and may lawfully place
a fence across a stream thus flowing through and over his land.


R. L. Edmiston, for appellant.
A. E. Gallagher, for respondents.


DUNBAR, C. J. ANDERS and FULLERTON, JJ., concur. REAVIS, J.,
concurs in the result. DUNBAR
{*347} This action is brought by the respondents to recover of
appellant $ 250 as damages which respondents {*348} sustained by
reason of the appellant cutting a wire fence on the land of
respondents in Spokane county, where such wire crossed the stream
known as the "Little Spokane River," which flows through the land
of respondents; and also to recover of the appellant the sum of $
250, the value of certain trout fish which appellant caught in
said Little Spokane river while in a boat on said river on
respondents' land where said river runs across the land of
respondents, and which said fish appellant took and converted to
his own use. A demurrer interposed to the amended complaint was
overruled. Defendant (appellant) refusing to plead further, the
court, made findings of fact and conclusions of law in accordance
with the allegations of the amended complaint, and gave judgment
in favor of plaintiffs (respondents) and against defendant for $
500 and costs. The findings of fact following substantially the
allegations of the complaint, it is necessary to examine only the
allegations of the complaint, under the first assignment of
error, that the court erred in overruling the demurrer of
defendant to the amended complaint, although assignments of error
are based upon the conclusions of law.
It is conceded by the appellant that only two propositions are
involved, viz: (1) Did the respondents have a legal right to
place on their land the barbed wire fence in question across the
stream, so as to prevent the passage of row boats; and (2) Did
the appellant have a right to catch fish in the stream on
respondents' land, he being in a row boat, as alleged in the
amended complaint. The complaint alleges in the usual manner the
trespass and the catching of the fish, the ownership of the land
and that said stream had never been meandered, and gives the
following description of the stream:
{*349} "That said Little Spokane river, where the same runs
through, over, and across the premises described, and for ten
miles up said river from said premises, and down said river from
said premises to the mouth of said Little Spokane river, during
high water in said river, the water therein is of an average
width of forty feet and on an average during said time of four
feet in depth; that high water continues at various stages in
height in said river for about three months during each year, and
the water in said river at said premises and up and down said
river from said premises for the distance above stated during the
rest of each year for the last twenty years has been about forty
feet in width and two feet in depth; that the depth and width of
the water in said river for the distance above mentioned varies
at different places in said river at all seasons of the year, the
water in said river at places becoming wider than as above
stated, and at places as low as six inches in depth; that said
river from a point about ten miles above the premises above
described to its mouth, carries at all seasons of the year
sufficient water in width and depth so as to permit the running
of row boats of the usual size up and down said river; that no
part of said river has ever been used as a navigable stream or
highway for any purpose whatever, except that said river has been
used to a limited extent for the purpose of pleasure by the
running of row boats up and down said river by persons desiring
to fish for pleasure in said river."
It alleges the maintenance by the plaintiffs of the barbed wire
fence above mentioned, the catching of the fish by the defendant
without any authority, and the appropriation of the same to
defendant's use.
It is contended by the appellant that the stream was a navigable
stream and that, therefore, the defendant had a right to navigate
the stream and to fish therein; and that the respondents had no
right to put a fence of any kind across it which would interfere
with the right of the public {*350} to use it for all purposes
for which nature made it applicable; -- citing in support of this
contention § 7303, Bal. Code, which is a statute to prevent the
obstruction of navigable waters in this state; and that, the
fence being a public nuisance, the appellant had a right to abate
it. But, even conceding for the purpose of the discussion, that
the stream was a navigable one, the principle of law is well
established that a public nuisance can be abated only by a public
officer, except where the party who desires to abate it has some
special interest in the abatement which is different from and
greater than the interest of the community. The cases which the
appellant cites from this court to sustain his contention are
squarely opposed to him. Thus, in Carl v. West Aberdeen Land,
etc., Co., 13 Wash. 616 (43 P. 890), the right to abate the
nuisance was founded upon a special interest; the court in that
case saying:
"Under this assignment of error it is further contended that the
obstruction was a public one, but, even if it was, the plaintiffs
showed that they were so situated that they had a special private
interest in having it removed so that they could pass their logs
down the river, and for that reason were entitled to maintain
their action for that purpose."
Even this case was where there was an action to abate the
nuisance, and not an attempt by the party to abate it himself.
The citation from Gould on Waters, § 42, does not seem to us to
affect the question in any way. That special damages must be
shown, see Jones v. St. Paul, etc., Ry. Co., 16 Wash. 25 (47 P.
226); Stufflebeam v. Montgomery, 2 Idaho, 763 (26 P. 125); Esson
v. Wattier, 25 Ore. 7 (34 P. 756); 2 Wood, Nuisances (3d ed.), §
646, and cases cited in note 4.
{*351} But we are of the opinion from the allegations of the
complaint that the river was non-navigable. Hence it becomes
necessary to ascertain the rights of riparian owners. The title
to the land under all the navigable waters of this state passed
from the sovereignty of the United States to the sovereignty of
the state upon the admission of the state to the Union; but,
under the well established law of the land, the title to the land
under the non-navigable waters passes from the United States to
the grantee of the upland bounding on such non-navigable waters
as an incident to such grant; and, although at the common law the
test of the navigability is the ebb and flow of the tide, yet,
especially in this country, it is held that the rivers and
streams above the ebb and flow of the tide, which have
sufficient capacity for useful navigation, are public rivers and
subject to the same general rights which the public possesses in
navigable waters. But we are clearly of the opinion that the
stream under consideration is a non-navigable stream. Many of the
authorities which we will cite in support of this contention
support also the other propositions indicated above, and they
will, therefore, be cited indiscriminately.
"A stream is a public highway wherever it is suitable in its
natural condition for general use in travel or in the
transportation of property." Gould, Waters, § 107.
"If the stream is not always navigable it must be capable of
floatage, as the result of natural causes, at periods ordinarily
recurring from year to year, and continuing for a sufficient
length of time in each year to make it useful as a highway. The
mere possibility of occasional use during brief or extraordinary
freshets does not give it a public character. A similar principle
applies in the case of small tidal creeks, in which, although
prima facie they are public and navigable, private property may
be maintained. It is not every small creek in which a fishing
skiff or gunning canoe can be made to {*352} float at high tide
which is deemed subject to public use; but in order to have a
public character, it must be navigable for some purpose useful to
business or pleasure." Id. § 109.
"But, while the common law only regarded those streams in which
the tide ebbed and flowed to the extent of such flow and re-flow
as navigable, yet there was another class of streams called
fresh-water streams, which, if susceptible of navigation by
'boats and lighters', or, as it would seem, for any beneficial
public purpose, and were navigable in fact, were regarded as
highways over which the public had free access, for the purposes
of trade and commerce. The only real distinction between the two
classes of streams arose from the distinction as to the ownership
of the alveus of the stream, and the rights of riparian owners
therein. In all salt-water streams, subject to the action of the
tides, the king not only owned the alveus, but had exclusive
title in, and jurisdiction over the stream for all purposes not
inconsistent with navigation, while in fresh-water streams, the
riparian owner had certain special privileges of which the king
could not deprive him. He had the exclusive right of fishery, the
benefit of alluvial deposits or accretion, the right to erect
wharves which did not impede navigation and to take tolls for the
use of them, and, in fact, a right to make any use of the water
or the bed of the stream that his tastes or interests dictated,
that did not interfere with the public right of passage.
Therefore, when it is said that by the common law no stream is
regarded as navigable except those in which the tide ebbs and
flows, it is not meant that no other streams are burdened with a
public easement of passage, but that in law, and irrespective of
the question of fact, all such streams are navigable, whether
they are so in fact or not, and that the title thereto, with all
privileges, vests in the king; and that all other streams,
navigable in fact, are highways for the passage of boats, but the
title to which, with all special privileges, outside of the
public easement, vests in the owner of the banks." 1 Wood,
Nuisances (3d ed.), § 452.
{*353} So that it would seem in this case that, even conceding
that the stream, which is a fresh-water stream, be a navigable or
public river, yet the right of fishing remained in the owner of
the banks, the public having only an easement over the land, and
the taking of the fish therefrom would be a trespass for which
the owner would be entitled to damages. It is true, the fact that
a stream is not meandered does not establish the fact that it is
a non-navigable stream, but probably indicates that, in the minds
of the officers ordering the survey, it was not a navigable
stream. It is well established that, except in salt-water
streams, the question of navigability is one of fact that must be
established by those who seek to use it as such; and it is also
well established that the stream must be navigable in its natural
state, unaided by artificial means or devices. This proposition
was announced by this court in East Hoquiam Boom, etc., Co. v.
Neeson, 20 Wash. 142 (54 P. 1001), where it was said: "It is well
settled that a stream which can only be made navigable or
floatable by artificial means is not a public highway;" citing
many cases to sustain the proposition. In Rowe v. Granite Bridge
Corporation, 21 Pick. 344, Chief Justice SHAW, delivering the
opinion of the court, said:
"Nor is it every small creek, in which a fishing skiff or gunning
canoe can be made to float, at high water, which is deemed
navigable. But in order to have this character, it must be
navigable for some purpose, useful to trade or agriculture."
In Nutter v. Gallagher, 19 Ore. 375 (24 P. 250), a case which is
cited by appellant, it is held that a stream or water course, in
order to be navigable, must be of sufficient extent and capacity
to enable the community at large to utilize it in the navigation
of boats and other water craft thereon, for the transportation of
products {*354} and other merchandise, or for the purpose of
floating logs and timber from forests to market. In the case of
The Montello, 20 Wall. 430, where the language of Chief Justice
SHAW, supra, was repeated and indorsed, it was said that "The
capability of use by the public for purposes of transportation
and commerce affords the true criterion of the navigability of a
river, rather than the extent and manner of that use." It was
held in Haines v. Hall, 17 Ore. 165 (20 P. 831, 3 L.R.A. 609),
that a stream which has a floatable capacity at certain periods,
recurring with regularity and continuing for a sufficient length
of time to make it useful as a highway for floating logs, is
navigable; but to be navigable in this sense it must be capable
of such floatage as is of practical utility and benefit to the
public as a highway for trade and commerce. It was further said:
"If its location is such, and its length and capacity so limited,
that it will only accommodate a few persons, it cannot be
considered a navigable stream for any purpose. It must be so
situated, and have such length and capacity, as will enable it to
accommodate the public generally as a means of transportation."
To the same effect is Burroughs v. Whitwam, 59 Mich. 279 (26 N.W.
491).
The court, in Wethersfield v. Humphrey, 20 Conn. 218, in passing
upon the question of whether certain waters were navigable, after
reciting the fact that at times a fish-boat, or skiff, or Indian
canoe might have been pushed through the waters, said:
"But this is not navigation. That only is such, and those only
are navigable waters, where the public pass and repass upon them,
with vessels or boats, in the prosecution of useful occupations.
There must be some commerce or navigation which is essentially
valuable;" --
citing Lord Hale's remarks in his treatise De Jure Maris :
{*355} "There be some streams or rivers that are private, not
only in property and ownership, but also in use, as little
streams and rivers that are not a common passage for the king's
property."
To the same effect is American River Water Co. v. Amsden, 6 Cal.
443. In that case it was held:
"A river beyond the ebb and flow of the tide may be navigable,
when it has sufficient depth and width to float a vessel used in
the transportation of freight or passengers; and this has been
extended to its capacity to float rafts of lumber. To go beyond
this and declare a stream navigable which can float a log, would
be to turn a rule intended for the benefit of the public, into an
instrument of serious detriment to individuals, if not of actual
private oppression."
"It should be understood that, except in salt-water streams, so
far as the tide ebbs and flows, the question of navigability is
one of fact, and must be established by those who seek to use it
as such; and, also, that the stream must be navigable in its
natural state, unaided by artificial means or devices. If a
stream is not susceptible of valuable use to the public as a
navigable or floatable stream, without the erection of dams, it
is not a navigable stream, even though it might be applied to
that use after dams are erected." 1 Wood, Nuisances (3d ed.), §
463.
There is no claim here that the stream under discussion was ever
used as a floatable stream, or that any transportation has been
carried on over it except in small boats, from which persons
fished for pleasure.
The legislature of this state has provided that the common law,
so far as it is not inconsistent with the laws of the United
States, or of the state of Washington, or incompatible with the
institutions and condition of society of this state, shall be the
rule of decision in all the courts of this state. Bal. Code, §
4783. The common-law rule {*356} having been adopted, it must be
held that the title to the beds of non-navigable streams is in
the adjacent riparian proprietors to the center of the stream.
This holding is not inconsistent nor incompatible with the
institutions and condition of society in this state, nor with the
constitution and laws of the United States or of the state of
Washington. It was held by this court in Benton v. Johncox, 17
Wash. 277 (49 P. 495, 39 L.R.A. 107, 61 Am. St. Rep. 912), that
the common-law doctrine declaratory of riparian rights is not
inconsistent with the constitution and laws of the United States
or of this state, or incompatible with the conditions of society
in this state, "unless," said the court, "it can be said that the
right of an individual to use and enjoy his own property is
incompatible with our condition." The statute law and the
decisions of this court, then, having made the common law the
arbitrator of the rights of the riparian proprietors, the
decisions of the courts declaring the rights of riparian
proprietors under the common law become important. In Hooker v.
Cummings, 20 Johns. 90 (11 Am. Dec. 249), it was said:
"In the case of The People v. Platt, * * * we recognized the
principles of the common law to be, that, in case of a private
river, that is, where it is a fresh water river, in which the
tide does not ebb and flow, and is not, therefore, an arm of the
sea, he who owns the soil has, prima facie, the right of fishing;
and if the soil on both sides be owned by an individual, he has
the sole and exclusive right."
See, also, Palmer v. Mulligan, 3 Caines, 308 (2 Am. Dec. 270).
In Adams v. Pease, 2 Conn. 481, it was held that:
"The owners of land adjoining Connecticut river above the flowing
and ebbing of the tide, have an exclusive right of fishery,
opposite to their land, to the middle {*357} of the river; and
the public have an easement in the river, as a highway, for
passing and repassing with any kind of watercraft."
"The bed and banks of a fresh water river, where the tide does
not ebb and flow, are the property of the riparian proprietors,
the public having an easement only for passage as on a public
highway; and such proprietors may use the land or water of the
river in any way not inconsistent with this easement."
(Syllabus.) Chenango Bridge Co. v. Paige, 83 N.Y. 178 (38 Am.
Rep. 407).
In Attorney General v. Evart Booming Co., 34 Mich. 462, among
other things, it was said in substance by Judge COOLEY, who
rendered the decision of the court, that the Muskegon river was
not a navigable stream, and the public had no rights whatever in
the soil under it: that it was only a small stream, whose value
to the public consisted in the use that could be made of it for
the purpose of floating logs and lumber; and it was held that the
property taken in such a case was private property, and the owner
of the bank could maintain trespass or ejectment against the
taker. See June v. Purcell, 36 Ohio St. 396.
In McFarlin v. Essex Company, 10 Cush. 304, it was said by Chief
Justice SHAW, speaking for the supreme court of Massachusetts,
that it was well established as law of the commonwealth that in
all waters not navigable in the common-law sense of the term, the
right of fishery is in the owner of the soil upon which it is
carried on, and in such rivers that the right of the soil is in
the owner of the land bounding upon it; citing Waters v. Lilley,
4 Pick. 145 (16 Am. Dec. 333)., and Commonwealth v. Chapin, 5
Pick. 199 (16 Am. Dec. 386).
In Lincoln v. Davis, 53 Mich. 375 (19 N.W. 103, 51 Am. Rep. 116),
it was held by the supreme court of Michigan that the law was
well settled that riparian {*358} proprietors upon fresh water
streams had the exclusive right of fishing in the water opposite
their land; citing Gould, Waters, § 182, and cases cited in note
1; Angell, Water Courses, § 61; Hart v. Hill, 1 Whart. 124;
Beckman v. Kreamer, 43 Ill. 447 (92 Am. Dec. 146). The citation
from Gould on Waters, § 182, is as follows:
"Riparian proprietors upon the fresh-water streams have the
exclusive right of fishing in the water opposite their lands, and
this right extends to navigable fresh rivers as well as those
which are unnavigable, where the soil of the former is held to be
private property. Riparian proprietors upon all such streams,
whose title extends ad filum aquae, can maintain an action of
trespass against those who draw a seine between the center of the
stream and the bank of his land."
It is true that the legislature of the state has passed laws
regulating fishing, has made close seasons, and provided a
penalty for persons killing fish by use of dynamite or other
explosives. It is also true that fish are ferae naturae, and that
their habitat is not entirely local; hence it might be thought
that no property in fish could vest in the owner of the land; but
it is ownership subject to the rights of the public, and must be
exercised with due consideration for the nature of the property,
and exercised only when the fish are upon the land of the owner.
In accordance with this view, it was held in State v. Roberts, 59
N.H. 256 (47 Am. Rep. 199), that, while the right of fishery in
waters not navigable was limited to the riparian owner of the
soil, and belonged exclusively to him, yet this right in the
owner of the land must be regarded as qualified to a certain
extent by the universal principle that all property is held
subject to those general regulations which are necessary to the
common good and general welfare, and to that extent it was
subject to legislative control; that it is a well established
principle {*359} that every person shall so use and enjoy his own
property, however absolute and unqualified his title, that his
use of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor
injurious to the rights of the public. Hence, while the riparian
owner has the exclusive right of fishery upon his own land, he
must so exercise that right as not to injure others in the
enjoyment of a right upon their lands upon the stream above and
below. But, subject to these qualifications, the right of fishery
to the riparian owner is absolute. To the same effect are Beach
v. Morgan, 67 N.H. 529 (41 Atl. 349, 68 Am. Rep. 692); Trustees
of Brookhaven v. Strong, 60 N.Y. 56; Holyoke Company v. Lyman, 15
Wall. 500; Sterling v. Jackson, 69 Mich. 488 (37 N.W. 845, 13 Am.
St. Rep. 405); Washington Ice Co. v. Shortall, 101 Ill. 46 (40
Am. Rep. 196); Braxon v. Bressler, 64 Ill. 488; Cobb v.
Davenport, 33 N.J. Law, 223 (97 Am. Dec. 718); New England Trout
and Salmon Club v. Mather, 68 Vt. 338 (35 Atl. 323, 33 L.R.A.
569); Norcross v. Griffiths, 65 Wis. 599 (27 N.W. 606, 56 Am.
Rep. 642.)
It appearing from the record in the case that the river from
which these fish were taken was non-navigable, that the owners
had a right to maintain a fence over the same, and that they had
the exclusive right of fishery in the waters flowing over the
land, and no proper exceptions having been taken to the finding
in relation to the amount of damages, the judgment will be
affirmed.
                     DISPOSITION
                              
                              Affirmed.
                              
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