People ex rel. Ricks Water Co. v. Elk River Mill & Lumber Co.

Citations

• 107 Cal. 221
• 40 P. 531
• 1895 Cal. LEXIS 738

Syllabus

<p>Navigable Stream—South Fork of Elk River—Construction of Code.— Under section 2349 o£ the Political Code, declaring navigable all streams emptying into Elk river, “ which are now, or at any time have been, used for the purpose of floating logs or timber,” the south fork of Elk river, which is a small stream insufficient to flow single sawlogs, except during extreme winter freshets, and with the aid of dams to increase the flow of the stream, which use has been found impracticable and abandoned, is not a navigable stream within the meaning of the code.</p> <p>Id.—Stream, When Floatable for Logs.—In order that a stream may be floatable for logs, within the meaning of the code, it must be capable of being used to an extent that would make it of some value as a highway, or at least it must appear that the stream could be so used for some portions of the year, and the fact that it could be so used for a few days in the rainy season, with the aid of dams, would not make the river navigable.</p> <p>Id. -Non-navigable Stream—Public Way—Power of Legislature. —If a stream is, in fact, non-navigable, it is not a public way, and the legislature cannot make it such by merely enacting a law declaring it navigable, and so take private property for public use without compensation.</p> <p>Id.—Dam Across .Non-navigable Stream—Obstruction—Purbresture. The erection of a dam across the bed of a nonnavigable stream is not an actionable obstruction nor a purpresture.</p> <p>Id.—Obstruction and Pollution of Stream—Findings—Refusal of Injunction.—In an action to restrain the obstruction of a stream by a dam impounding sawlogs for the use of a mill, and from polluting the stream by discoloration from the logs, and by allowing sawdust to find its way into the stream, and by discharging the waste water from the kitchen, and waste matter from the sawmill, and the escape of offal into the stream from privies and a slaughterhouse, where the court finds that the bed of the stream was private pr