The opinion
Avery, J.,
dissenting: While the criterion by which the navigability of waters was determined in England has not-been adopted as a test in America, the rule established in both countries is founded upon the same substantial reason, that where a particular watercourse can be relied upon with tolerable regularity as a highway for transporting valuable products of an extensive section of country to market, those who are engaged in conducting such commerce have an easement superior to the right of the owner of the soil or the riparian proprietor. Thunder Bay Co. v. Speechly, 31 Mich., 336 ; Moore v. Sanborn, 2 Mich., 519 (59 Am. Dec., p. 20); Walker v. Allen, 72 Ala., 456 ; Little Rock, etc., Railroad Co. v. Brooks, 39 Ark., 403; The Montello, 20 Wall., 441 ; Broadnax v. Baker, 94 N. C., 681 ; Brown v. Chadbourn, 31 Me., 9; 6 Lawson’s R. & Rem., sec. 2928; Wood on Nuisances, sec. 588; Davis v. Winslow, 51 Me., 264 and note 81 Am., sec. 582; Angell on Highways, sec. 55; Angell on Watercourses, sec. 537; The Daniel Ball, 10 Wall., 563 ; Hikok v. Hine, 13 Am. Rep., 255 ; State v. Narrows Island Club, 100 N. C., 477 .
In Englaud the streams above tide-water were seldom, if ever, made to subserve such useful purposes; but in many portions of America there are rivers that afford an outlet (and freqently the only one) for most valuable ores and timber. It has been well said, that “ in the most approved modern sense of the term in this country, navigable waters include *561 all those which afford a channel for useful commerce. Such-waters are public highways of common right.” 16 Am. and Eng. Ene., p. 236.
This Court distinctly recognized the principle that the-right of a riparian proprietor of both banks was servient to the easement of the public in the water for the purpose of carrying to market whatever of the products of the country could be transported upon it in State v. Glenn, 7 Jones, 321 ; using the language afterwards quoted in State v. Narrow Island Club, supra. “ As the riparian proprietor of the land on both sides of the stream, he is clearly entitled to the soil entirely across the river, subject to an easement to the public for the purpose of transportation of lime, flour and other articles in flats and canoes.” It was in evidence in that case, that flatboats could be used and had been employed in carrying the articles mentioned on the Yadkin river. It was in evidence, and not disputed, that the French Broad river had been used for transporting logs for fifteen or twenty years, as high up as twenty-six or twenty-eight miles above the plaintiff's fish-traps; that it was probably susceptible to such use to a point further up the main stream, and that within the section actually used three tributaries, Swannanoa, Little river and Mud creek, emptied into it. Without considering the additional facilities that may have been afforded by the smaller streams for bringing timber to the French Broad, we must conclude that its use as an artery of commerce, though confined to the transportation of logs, will not only prove valuable to those engaged in manufacturing lumber, but will furnish a channel by which the timber in a large area of territory extending out from both banks of the river may find an outlet to market. As nonebut themost valuablehard-wood logs will bear transportation by railway from points remote from the coast, as a rule the value of immense forests is often left to depend upon local demand until the cheaper water highways are utilized. Hence, public policy, as well *562 ■as reason, upon which the recognition of the easement in watercourses is founded, have inclined the Courts to sustain the right of the owners of large forests or extensive mining ■districts to enjoy the privilege, when shown to be very valuable to them, at the comparatively insignificant sacrifice •on the part of a riparian proprietor of using his property in subordination to it. It was upon such consideration that ■the Courts of those States where the fresh-water streams were first found useful in the development of mineral or well timbered lands, declared that the reason of the English rule extended, under the widely different circumstances often •existing in this country, not only to navigable tidal streams and fresh-water streams large enough for boats and lighters, but to such as subserved the purpose of bearing the products of the mines, forests and tillage of the country traversed by them to mills or market. Wood L. Nuis., sec 586; 16 Am. and Eng. Enc., 242; Moore v. Sanborn, 2 Mich., 526 ; Brown v. Chadbourne, supra; Lewis v. Coffee, 77 Ala., 190 ; Treat v. Lord, 42 Me., 552; Canfield v. Erie, 1 Mich., 105 ; Grand Rapids v. Jarvis, 30 Mich., 308 ; McLaughlin v. Mining Co., 103 N. C., 100 ; State v. White Oak River Corporation, at this •term.
The best criterion of the navigability of a watercourse, therefore, is unquestionably its adaptability for the purposes of useful commerce, and, bearing this controlling principle in mind, we see no sufficient reason for the arbitrary distinction which counsel contended should be drawn between transporting logs in rafts and allowing each log to drift or float with the current of the stream. The object being to develop vast forests of virgin trees, that are located remote from the centers of trade, by utilizing the natural force of the flowing water as a means of cheap transportation, the reasons offered for sustaining the right to the easement, in a sluggish stream, where the logs can be floated in rafts, and denying its existence in a watercourse of much greater volume *563 and equal depth, because it is studded with immense rocks, and the fall is so great and the current so strong that rafts cannot be handled with safety, seem to me very unsatisfactory. The recogeition of the distinction would prohibit the development of the mountain section, where there are generally strong currents and sudden falls, though Nature had furnished the means of reaching the object in view, more certainly and expeditiously by using the swift rather than the sluggish current. If logs were attached to each other so as to form large rafts, they might be so steered as to avoid nets, dams and other obstructions placed in water that moves slowly; but, even though no large stones protruded above the surface of a swift stream, it would be impossible without the aid of a steam tug to protect dams built across them from the consequences of collision, involving much more danger of destroying them than would the lodging of logs, one at a time, against them. In this view we are sustained by abundant authority in those States where the floating of logs to market has become an extensive and profitable industry. Brown v. Chadbourne, supra; Field v. Log Co., 67 Wis., 569 ; Buchanan v. Grand River Co., 48 Mich., 364 ; Muse v. Smith, 3 Oregon, 621; Grand Rapids v. Jarvis, supra; Treat v. Lord, supra.
It is true, that in one or two of the States where the forests are not extensive or the timber trees very valuable, the rule has been adopted that a due regard for the rights of owners of dams requires that the logs should either be transported in rafts in charge of some persons who can steer them, or that during the season when they are being floated men should be posted at intervals along the banks of streams to prevent a collection of logs at any one point. But in States where timber has become an important article of commerce, the better rule prevails that when we even concede a stream to.be a public highway, all private rights in it *564 must be as completely subordinated as in a public road passing through land of private individuals.
The Legislature unquestionably has, on the one hand, the* power to make any obstruction of a highway indictable, or, on the other, to permit the original owner of the land in the exercise of his servient right to erect a gate across the highway upon certain conditions which will protect the public from great inconvenience in using it. In the same way the Legislature has, by statute (The Code, § 1849) provided 'that the owner of land on one bank of a stream may, under certain circumstances, cause a mill-site to be condemned. On the other hand, The Code, § 3706 et seq., clearly recognizes the doctrine that all streams that are susceptible of use for commerce, are public highways which may be taken in charge by the County Commissioners and cleared out and improved at the expense of the county, and placed in charge of overseers with certain designated hands subject to their orders, just as is done in reference to public roads. And the Legislature has, in the- most explicit terms, recognized also the principle that streams susceptible of use for floating logs are public highways in which the public have a right superior to even that of the mill-owner, who has the fee-simple in the whole bed of the stream. In section 3712 of The Code, commissioners, who may be appointed by the county authorities “to examine and lay off rivers and creeks in their county ” (section 3710), are empowered “ to lay off gates with slopes attached thereto^ upon any mill-dam built upon such stream, of such dimensions and construction as shall be sufficient for the convenient passage of floating logs and other timber.”
If the riparian proprietor or owner of the bed of the stream had a right superior to that of the public, it would be necessary before requiring him to open a passwav in his dam to condemn and pay for such way under the right of eminent domain. But it is because all streams *565 useful for commerce are natural highways, over which the sovereign State is at liberty to assert the right of control for public use absolutely or only to a limited extent, as it may elect, that the owner cannot object t > having it declared subject to public use without condemnation and compensation. Barnard v. Hinkley, 10 Mich., 459 ; 16 Am. and Eng. Enc., page 263, note 3.
The statute provides for laying off a way for the convenient passage of floating logs, not rafts, thus showing the legislative intent to protect as fully the right of a man who has but a single log, to mark it and let it float along a highway in this State to the waters of the Tennessee, as that of a company that has capital to buy immense forests, construct rafts, and to so enlarge their business as to justify them in posting a line of sentinels to watch and steer from Asheville to Paint Rock. If the public has an easement or-right in a river as a highway, it is the office of the Legislature to restrict the use of it so as to protect mills, fish-dams and bridges, if they think best. The Courts have no authority by their judgments to remedy evils for which it is within the province of the law-making power alone to furnish the means of redress. Much less has the Court a right arbitrarily to declare that though a stream useful for commerce is by common law a public highway, it can be used only by persons who fasten logs together and float them as rafts. It seems to me that a Court might as well declare that one who drives an ox or pair of oxen shall not have the right to'usethe public road, because the ox is less manageable and more apt to bring a conveyance into collision with other passing vehicles than horses or mules. I am free to concede that there has been some conflict of authority on this subject, and, as we are at liberty now to align this Court with those maintaining either-view, it is well for us to remember that there are sixteen mountain counties lying west of the Blue Ridge in North Carolina, in all of which will be found timber of great value *566 that can never find its way to market except by the swift mountaiu streams, that are for the most part utterly incapable of floating rafts, but many of which will transport logs by the thousands and ultimately deliver them at the market towns, where various railroads cross the Tennessee river. Nature has provided this outlet where the character of the country is such that railways can be built only at immense cost. The Legislature has already defined the respective rights of mill-owners and log floaters, where the timber interest assumes such magnitude in the low country as to challenge the attention of the Ci-unty Commissioners
It may- not be amiss to call attention to the fact that the Legislature has also asserted its right to have all fish-dams on the French Broad river from Paint Rock to Brevard opened for the free passage of fish. The Code, § 3410, provides that no person shall place or allow to remain in the French Broad river, from the State line to Brevard, any dam for mill or factory purposes, unless the owner thereof shall construct thereon, at his own expense, a sluice-way for the free passage of fish, of a width of not less than three feet nor more than ten feet. It may be well to remember that the Legislature has thus declared a passway of not more than ten feet sufficient for all purposes between Asheville and Brevard, where the river is admitted to be a floatable stream, and yet a raft must ordinarily be much wider.
In section 3412 it is provided that no other obstruction to the passage of fish shall exist or be built between the designated points in the streams hereinbefore mentioned, unless an opening of -not less than twenty-five feet and not more than seventy-five feet, embracing the main channel of said streams, shall be made by the owner of such obstructions within twenty days after notice from the Board of Agriculture to make such opening, under penalty of fifty dollars per day for each day such obstruction shall remain unopened.
*567 I think that the statute giving the County Commissioners' the power to take charge of floatable streams is, and was. intended, to be merely in affirmance of the common law right to use a stream capable of floating logs to market with' reasonable regularity for a portion of each year, and a grant of authority to the counties for the public benefit to keep such streams unobstructed, just as a public road is kept in good condition. Since it was intimated in Glenn’s case, and has since been distinctly declared, that there is such a thing as a stream navigable for logs, it is too late to attempt to distinguish between the dominant right of the public for that-purpose and the superior, right of a steamer to the channel of a stream large enough to permit its passage.- McLaughlin v. Mining Co., supra; State v. White Oak River Corporation, decided at this term. A statute, which attempts to confer on mill-owners the right to obstruct the passage of fish is unconstitutional. He maintains his obstruction subject to the right of the Legislature to require, in the interest of other riparian owners, that a sufficient passway for fish be opened in it. 8 Am. and Eng. Ene., p. 35.
It is not necessary, in order to establish the easement in a river, to show that it is susceptible of use continuously during-the whole year for the purpose of floatage, but it is sufficient if it appear that business men may calculate that., with tolerable regularity as to the season, the water will rise to and remain at such a height as will enable them to make it profitable to use it as a highway for transporting logs to market or mills lower down. When prudent business men may regulate their expenditures with reference to the anticipated rise,, the stream becomes a factor in conducting the commerce of the country. Walker v. Allen, supra; Little Rock v. Brooks, supra; Felzer v. Robinson, 3 Oregon; Thunder Bay Co. v. Speeksly, supra; Morgan v. King, 35 N. Y., 454 . This is one of many instances illustrating how, looking always to the reason upon which the common law was founded, its princi- *568 •pies may be expanded so as to meet the exigencies arising in the development of a new country under conditions that ■did not exist in England.
There was evidence introduced by the plaintiff, aud undisputed, tending to show that the river had been utilized for •floatage for fifteen years for a distance of twenty-five miles, at least, above the trap, thus offering a channel for shipment to a large territory and numerous persons, and that one person had cut four million feet of lumber into it in one month. While a short stream or arm of a bay might not be declared a highway for the convenience of a few persons interested in a small territory, the- right to the easement may always be asserted when there is “ a capacity for valuable and extensive floatage.” Moore v. Sanbourne, supra; Wadsworth v. Smith, 26 Am. Dec, 525; Rhodes v. Otis, 73 Am. Dec., 439 . The witness Zachary testified that he had lived on the French Broad river since the year 1869, and there had been a great ■deal of high water every winter since that date, except the two last winters, but during those two it had been high enough to float logs.
I believe that the majority of the Court concur only in the view that the testimony left the question whether the French Broad river below Asheville was shown to be capable of floating logs to market during the winter season in dispute, and that the jury should have been allowed to pass upon it. As I interpret the testimony, no witness stated that logs could not be floated during every winter. It is probable that all ■would have testified that it was impracticable to float rafts ■either above or below Asheville, or in any stream west of the Yadkin.
If the streams are only open as a highway for logs in that shape, the enforcement of the rule would prove an embargo upon that species of commerce on every stream where rocks and shoals abound, and render it necessary to condemn the beds of such streams and blast out the rocks before they can *569 be utilized as public highways. Town of Pierreport v. Loveless, 72 N. Y., 212 ; Walker v. Board of Public Works, 16 Ohio, 540.
But it seems to me that if the river above Asheville had been profitably used for fifteen years for floating logs to mills located there, it would be presumed that, according to the laws of Nature, the stream, which was growing larger and more powerful below, would be, for the same period, capable of profitable use in floating single logs'. The immense rocks below might burst rafts asunder, but while a stream which had been cleared out for navigation above Asheville, might be too rough for steamers, but, according to all observation and experience, it could not have been so small or so rugged that it could not be relied on for transporting logs.
It appearing from the testimony that a large number of logs had been floated by the defendant, its agents and others, from points above the dam, and had reached their destination below without stopping, the fact that a number may have been washed ashore or drifted against rocks or other obstructions in the river and remained until started from their places of lodgment in nowise affects its navigability. Wood, supra, sec. 588; Wood v. Chadbourne, supra.
The Tar river, between Tarboro and Greenville, in our own State, is usually too low for several months in each year for navigation by the steamers that ply between the two points, and the rains that raise the river do not recur, at fixed periods any year, yet they come with such regularity that the riparian planter may calculate on transporation by water for his cotton crop with absolute certainty during the winter months. No one would contend that Tar river is not navigable by small steamers. Though logs might drift ashore when the waters are subsiding, there would, of course, be no room for dispute as to its capacity to float logs also.
The plaintiff rests his claim to damages upon the fact, which the testimony tends to prove, that more than one hundred and fifty logs belonging to the defendant lodged against *570 his dam on the evening before the fish-trap was swept away. Granting this to be true, and conceding, as we have shown, that the French Broad is a floatable stream or highway, the defendant, in common with all other citizens, had an easement with the rights incidental to its exercise, while the company, or its agents, were pursuing the usual plan in trusting its logs to the current, and were not wantonly and purposely thrusting them upon any dam, where the natural tendency of the stream was to carry them around it, they could incur no liability to answer in damages to any riparian proprietor, especially to one whose interest in the soil extended only ad filuvi aquse, while, according to his own testimony, he had left but little over one-third of the stream open. McNamee v. Alexander, 109 N. C., 242 ; State v. Glen, supra; Watts v. Boom Co., 52 Mich., 203 ; Union Mills Co. v Sheno, 66 Wis., 476 ; McPheeters v. L. D. & Co., 78 Miss., 329 . The defendant, having the dominant right of navigation for the purpose of transporting logs, was under no greater legal obligation to look after the safety of a dam attached to a fish-trap, by conducting the logs around it, than the commander of a steamer would have been in passing through a navigable sound to-steer around a fish-net that had been set across the channel. Hettrick v. Page, 82 N. C., 65 ; State v. Glen, supra; State v. Narrows Island Club, supra; Angell on Watercourses, §§ 558 659, 350; 3 Lawson Rem., § 2936; Davis v. Winslow, 81 Am. Dec., 580 .
If the plaintiff had the right to construct a dam as far as the center of the stream, his outer boundary, still the defendant had the superior right to enjoy the easement in the whole stream; and if in floating his logs in the usual way they came in contact with the dam, the company incurred no liability for loss from consequent injury to the fish-trap. Davis v. Winslow, supra; 26 Am. Dec., 530 ; Walker v. Shepardson, 4 Wis., 495 ; Yeates v. Judd, 18 Ibid, 118.
*571 We think that, according to the testimony, in any aspect' of it, the injury to the dam was caused by the drifting of logs, that were being transported in a lawful manner, against it. If we concede, for the sake of argument, that the riparian proprietor had the right to construct the dam and that the defendant’s agents were not authorized to treat it as a public nuisance and purposely tear it down in order to open a channel for the passage of its logs, still the plaintiff, upon the principle stated, and according to the authorities cited, could not recover for the failure of the defendant to keep the logs off the dam or trap. Hettrick v. Page, supra. In the exercise of a subordinate right it was incumbent on the plaintiff himself, in the most favorable view of the law for him, to-guard against possible injury from such cause, either by leaving an opening in the dam where the current would naturally carry the logs, or by steering them as they approached around the western end of it. Brown v. Chadbourne, supra; Lancey v. Clifford, 92 Am. Dec., 561 ; Gorman v. Benson, 77 Am. Dec., 435 ; Grand Rapids v. Powers, Albany Law Journal, February 13, 1892, p. 148.
If sectiou 1123 of The Code can be construed to affect the merits of our case at all, it at most gives the sanction of the-law to the erection of a dam for two-thirds of the distance ^gross a stream in which the public have an easement for transporting logs, but in subordination to the superior right to the use of the highway for that purpose.
While I understand that a majority of the Court thus far have concurred only in the view that there was error in refusing to submit the case to the jury, I have submitted my views, in dissenting, upon every aspect of the case, and at-length, because I am firmly persuaded that the future development of all of Western North Carolina, and especially of that section located on the waters of the Mississippi, depends more upon the ultimate decision of the points involved in. this case than upon any or all other contingencies.