Points Decided.

(December 10, 1910.)

PINK C. MASHBURN, Respondent, v. ST. JOE IMPROVEMENT CO., Appellant.

[113 Pac. 92.]

NAVIGABLE STREAMS-IMPROVEMENT OF STREAMS-FRANCHISE TO IMPROVE STREAMS AND COLLECT TOLLS-ACT OF FEBRUARY 28, 1899RIGHTS OF RIPARIAN PROPRIETORS-DAMAGES CAUSED BY FLOODING LANDS-ESTOPPEL.

(Syllabus by the court.)

1. The act of the legislature of February 28, 1899 (1899 Sess. Laws, p. 332), authorizing the state board of land commissioners to grant a license and franchise to a company or corporation to clear, deepen, straighten, and improve the channel of a stream and collect tolls for the floating of logs and lumber thereon, if not constitutional, affords no protection to the grantee of the license and franchise; and if constitutional, it cannot be construed to authorize the grantee of the franchise and license to enter upon the lands of the riparian proprietor or to interfere with the banks of the stream or the growing timber along the stream, or to commit any injury against or trespass upon the lands of such proprietor.

2. Every stream of water within this state which in its natural state is capable of floating logs or other commercial and floatable commodities for any practical period of time is to such extent and for such time a navigable stream, and the bed thereof is for such purposes subject to the regulation and control of the state.

3. All navigable streams within this state are highways to the extent and for the purpose of their navigability, and the state has a right to enter upon and improve the beds of such streams or highways.

4. In improving and keeping open navigable streams of this state, neither the state nor its licensee has any right to trespass upon the lands of the riparian proprietors, cut timber therefrom, cut away the banks, or impair the littoral rights of such proprietors without first compensating the proprietor in the manner provided by law.

5. A riparian proprietor who makes no protest or objections to the improvement of a stream by deepening and widening and straightening the same, and cutting away timber along the banks thereof, by a company that represents to him that it is acting under a license and franchise from the state, is not estopped by his in

Argument for Appellant.

action or quiescence from thereafter maintaining an action against the company for damages caused in the overflowing of his land and depositing logs and timber and debris thereon, which is directly caused by the cutting away of the timber and the weakening of the banks and the erection of splash dams above his lands, whereby the volume of water in the stream is greatly augmented and a flooding is caused.

6. No one is liable for damages caused by the forces of nature, but he who wrongfully augments and accelerates those forces is liable for the damages caused by his wrongful acts.

APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. Robert N. Dunn, Judge.

Action by plaintiff for damages. Judgment for the plaintiff and defendant appeals. Affirmed.

Gray & Knight, for Appellant.

The development of the different timber-producing states. has occasioned a great deal of legislation similar to the act of 1899, which has been found desirable and advantageous in making available the great natural wealth of the forests. These legislative acts have been universally held to be constitutional and valid. (1 Farnham on Waters, p. 154.)

The right of the legislature to provide for the improvement of the navigable streams and for that purpose to grant franchises to corporations or individuals has frequently been recognized and sustained. (Cohn v. Wausau Boom Co., 47 Wis. 314, 2 N. W. 546; Osborne v. Knife Falls Co., 32 Minn. 412, 50 Am. Rep. 590, 21 N. W. 704; 1 Farnham on Waters, sec. 28; St. Joseph County Commrs. v. Pidge, 5 Ind. 13; Toothaker v. Winslow, 61 Me. 123; Thompson v. Androscoggin River Imp. Co., 58 N. H. 108; Black River Imp. Co. v. La Crosse Booming & Tr. Co., 54 Wis. 659, 41 Am. Rep. 66, 11 N. W. 443.)

Any stream of sufficient capacity to float to market the products of the country through which the stream extends, so as to be useful to the proprietors along the banks, is navigable, and a right of way subsists in the public. (Gaston v.

Argument for Appellant.

Mace, 33 W. Va. 14, 25 Am. St. 848, 10 S. E. 60, 5 L. R. A. 392; Farmers' Co-op. Mfg. Co. v. Albemarle & R. R. Co., 117 N. C. 579, 53 Am. St. 606, 23 S. E. 43, 29 L. R. A. 700; Osborne v. Nelson Lumber Co., 33 Minn. 285, 22 N. W. 540; Gould, Waters, secs. 248, 248a, 249; Angell, Tide Waters, p. 92 et seq.)

Any stream which is capable, in its natural condition, of being commonly and generally used for floating sawlogs at periods of high water, is navigable or floatable for the transportation of the timber along its banks. (Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Moore v. Sanborne, 2 Mich. 520, 59 Am. Dec. 209; Weise v. Smith, 3 Or. 445, 8 Am. Rep. 621; Shaw v. Oswego Iron Co., 10 Or. 371, 45 Am. Rep. 146; Hallock v. Suitor, 37 Or. 9, 60 Pac. 384.)

Dams, dikes, embankments, and the like may be constructed in or along floatable streams to facilitate their use. (Union Power Co. v. Lichty, 42 Or. 563, 71 Pac. 1044.)

The appellant was in no way negligent in making improvements or in maintaining or operating the same, nor in floating logs down the streams, and is not liable for damages. (Kamm v. Normand, 50 Or. 9, 126 Am. St. 698, 91 Pac. 448, 11 L. R. A., N. S., 290, and cases cited.)

The state authorized the defendant company to make certain improvements for the purpose of facilitating the floatation of logs. The improvements were made, and the evidence tends to show that some small consequential damages resulted to the riparian owners. The defendant is not liable, for it was acting under and by virtue of an authority vested in it by the act of the legislature. (Brooks v. Cedar Brook etc. Co., 82 Me. 17, 17 Am. St. 459, 19 Atl. 87, 7 L. R. A. 460; Hollister v. Union Co., 9 Conn. 436, 25 Am. Dec. 36; Holyoke Water-Power Co. v. Connecticut River Co., 20 Fed. 71; Henry v. Vermont Cent. R. Co., 30 Vt. 638, 73 Am. Dec. 329.)

The erosion of private lands, resulting consequentially from authorized public improvements, is "damnum absque injuria." (Alexander v. Milwaukee, 16 Wis. 247 (264); Green v. Swift, 47 Cal. 536; Monongahela Nav. Co. v. Coon, 6 Pa. 383, 47 Am. Dec. 474; Northern Transp. Co. v. Chicago, 99 U. S. 635,

Argument for Respondent.

25 L. ed. 336; Field v. Apple River Log Driving Co., 67 Wis. 569, 31 N. W. 17; Mitchell v. Lea Lumber Co., 43 Wash. 195, 86 Pac. 405, 9 L. R. A., N. S., 900, 10 Ann. Cas. 231; Hot Springs Lumber & Mfg. Co. v. Revercomb, 106 Va. 176, 55 S. E. 580, 9 L. R. A., N. S., 894.)

Where a riparian owner's property was injured by defendant's floating logs down the stream, proof of defendant's negligence was essential to a recovery. The gist of such action is negligence. (Hunter v. Grande Ronde Lumber Co., 39 Or. 448, 65 Pac. 598; Hopkins v. Commercial Co., 13 Mont. 223. 40 Am. St. 438, 33 Pac. 817; Witheral v. Booming Co., 68 Mich. 48, 13 Am. St. 325, 35 N. W. 758; Field v. Log Driving Co., 67 Wis. 569, 31 N. W. 17; Cooley, Const. Lim., p. 542.)

"A company which has constructed works in a river in a proper manner, and by authority of the legislature, is not liable for damages for flowage of land caused by an extraordinary freshet such as the company could not reasonably have anticipated and provided against, even though such damages may have been to some extent occasioned by the presence of such works in the river." (Borchardt v. Wausau Boom Co., 54 Wis. 107, 41 Am. Rep. 12, 11 N. W. 440; Alexander v. City of Milwaukee, 16 Wis. 247 (264); Lamb v. Licey, 16 Ida. 664, 102 Pac. 378.)

R. E. McFarland and McBee & La Veine, for Respondent.

The courts look with contempt and disfavor on any attempt at forcible seizure and appropriation of another's property without compensation being first made therefor. (La Veine v. Stack-Gibbs Lbr. Co., 17 Ida. 51, 51 Am. St. 253, 104 Pac. 666.)

"The backing of water so as to overflow the lands of an individual, or any other superinduced addition of water. earth, sand or other material or artificial structure placed or land, if done under statutes authorizing it for the public. benefit, is such a taking as by the constitutional provisions demands compensation.' (Pumpelly v. Green Bay Co., 13 Wall. (U. S.) 166, 20 L. ed. 557; Chicago v. Taylor, 125 U. S. Idaho, Vol. 19-3

Opinion of the Court-Ailshie, J.

161, 8 Sup. Ct. 820, 31 L. ed. 638; U. S. v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. ed. 530; Colvin & Rinard v. Lyons, 15 Ida. 180, 96 Pac. 572.)

Anyone who by wrongful acts augments, defeats or accelerates nature's forces in such a manner as to injure another is liable in damages therefor. (Axtell v. N. P. Ry. Co., 9 Ida.

392, 74 Pac. 1075.)

It is immaterial whether or not the respondent protested against the use of his land. (U. S. v. Lynah, supra.)

The fact that all the improvements were made according to specifications filed with the state board of commissioners and in accordance with the terms of the franchise does not relieve appellant from liability for the damages complained of. (Haines v. Welch, 14 Or. 319, 12 Pac. 502; Brewster v. Rogers Co., 169 N. Y. 73, 62 N. E. 164, 58 L. R. A. 495; McKenzie v. Boom Co., 29 Minn. 288, 13 N. W. 123; Anderson v. Thunder Bay Co., 61 Mich. 489, 28 N. W. 518; Hackstack v. Keshena Imp. Co., 66 Wis. 439, 29 N. W. 240; Hueston v. Miss. R. Boom Co., 76 Minn. 251, 79 N. W. 92; Bowers v. Miss. R. Boom Co., 78 Minn. 398, 78 Am. St. 395, 81 N. W. 208.)

Assignments of error in brief relating to different questions should be separately stated and each accompanied with appropriate propositions and statements. (People v. Page, 1 Ida. 102; Houston & T. C. Ry. Co. v. Guisar (Tex. Civ. App.), 27 S. W. 1045; Powers v. Kindt, 13 Kan. 74; Whyte v. Rosencrantz, 123 Cal. 634, 69 Am. St. 90, 56 Pac. 436; People v. Woon Tuck Wo, 120 Cal. 294, 52 Pac. 833.)

AILSHIE, J.-This action was instituted by the plaintiff, who is respondent here, for the recovery of damages sustained to his lands and the lands of his assignors. A verdict was returned, and judgment thereupon entered in favor of the plaintiff in the sum of $3,750. Defendant moved for a new trial and thereupon appealed from the judgment and an order denying its motion.

Damages were asked for injury committed by the defendant upon the lands of the plaintiff and his assignors in cutting