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prietors by retarding the flow of the water or sending it down in increased volumes, to his injury or at times when the stream would not otherwise be navigable. And this rule is not changed by the fact that a stream cannot be successfully used for logging purposes without such artificial aids to navigation on the ground of necessity. In Booming Co. V Speechly and Koopman v. Blodgett, supra, the Supreme Court of Michigan had occasion to consider the right to make a stream, which is navigable only at certain seasons of the year, navigable at other times by impounding the water until a flow sufficient to float logs could be caused. In the former case, Mr. Justice Cooley, after reviewing the Maine and Michigan cases, quoting with approval what is said to be the true rule by the New York Court of Appeals, noting the fact that all the cases carefully restrict, within the bounds of capability for use in their ordinary and natural condition, the public easement in streams navigable only at certain seasons of the year, and holding that a stream is navigable during the period the water in its natural condition is sufficient to permit of a public use, he says: “During that time the public right of floatage and the private right of the riparian proprietors must each be exercised with due consideration for the other, and any injury which the latter receives in consequence of a proper use of the stream for floatage he must submit to as incident to his situation upon navigable waters. Middleton v. Booming Company, 27 Mich. 533. But at periods when there is no highway at all there is no ground for asserting a right to create a highway by means which appropriate or destroy private rights. The doctrine that this may be done without compensation to parties injured is at war with all our ideas of property and of constitutional rights. The most that can be said of this stream, during the seasons of low water, is that it is capable of being made occasionally navigable by appropriating for the purpose the water to the natural flow of which the riparian proprietors are entitled. It is highly probable, in view of the large interests which are concerned in the floatage, that the general public good would be subserved by so doing; but this fact can have no bearing upon the legal question. It is often the case that the public good would be subserved by forcing a public way through private possessions : but it neither should be nor can be done under any circumstances without observing the only condition on which it can be permitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public * * * As was remarked in Morgan v. King, 33 N. Y. 160, 91 Am. Dec. 67, the question of public right in a case like this is to be decided without reference to the effect which artificial improvements have had in the navigable capacity of the river; in other words, the public right is measured by the capacity
of the stream for valuable public use in its natural condition, and any attempt to create capacity at other times at the expense of private interests can be justified only on an assessment and payment of compensation." Monroe Mills Co. v. Menzel, supra, was a suit to enjoin the defendant from using the West Fork of Woods creek for floating shingle bolts and from maintaining a splash dam thereon. The court held the stream to be navigable or floatable during the freshets which occur with periodic regularity in the spring and fall of each year, but that the detention of the water by means of a dam, and the release thereof at irregular intervals, causing the stream to overtlow and washing the lands of the lower riparian proprietor, was such an interference with the natural flow of the water as would be enjoined. And in Matthews V. Belfast Mfg. Co., supra, it was held that the floating of logs down a stream, by means of dams and artificial freshets, at the time of the year when it is not navigable in its natural state, is an abuse of the right of navigation for which an injunction will lie at the suit of riparian owners injured there. by, and that a private corporation which is not a boom company is not entitled to exercise the right of eminent domain against a lower riparian owner, for the purpose of facilitating the floating of logs down a stream by means of dams and artificial freshets, which damages the lower proprietor and interferes with his use of the stream. In fact, our attention has not been called to a case, nor have we been able to find one, sustaining the right to maintain dams or other artificial structures in a stream whereby the water is impounded and let down in such a head or volume as to make the stream navigable, when it would not otherwise be so, unless it be in the states of Maine, Wisconsin, and Minnesota, where the construction of dams in floatable streams to facilitate their use is authorized by statute. Brooks v. Cedar Brook, etc., Imp. Co., 8.2 Me. 17, 19 Atl. 87, 7 L. R. A. 100, 17 Am. St. Rep. 159; Kretzschmar v. Meehan, 74 Minn. 211, 77 N. W. 41; Field and Others v. Apple River Log Driving Co., 67 Wis. 369, 31 X. W. 17.
Having thus ascertained that a stream, to be navigable or floatable for saw logs, must be capable in its natural condition at ordinary recurring freshets of being successfully and profitably used for that purpose, and that a stream not navigable or floatable in its natural condition cannot be made so by artificial means, nor can the capacity of a navigable stream be increased by such means to the injury of a riparian proprietor without compensation, we are now prepared to consider the facts of the particular case before us and determine the respective rights of the parties litigant. The plaintiff is the owner of 180 acres of land, most of which is bottom or meadow land and has been extensively improved and used as such. Through this
land, from the north and east, flows the Gilliam and Warnstaff put 80,000 or 90,000 North Fork of the Klaskanie, for a distance feet of logs in the stream above plaintiff's of about one-half mile, to a point a short dis- land, and that only five or six of them had tance west of plaintiff's land, where it joins come out, and the remainder were scattered another stream from the southeast, called the along the banks at the time he left the farm "South Fork" of the Klaskanie, and the two in 1902. John Leahy, who for 20 years has streams united flow to the west, forming the lived about 112 miles above plaintiff's premKlaskanie river. The tide ebbs and flows in ises, testified that the water is from 112 to the Klaskanie from its mouth up to or about 2 feet deep in the winter, except in case of · the confluence or junction of the two streams unusually high water, which may referred to, and is conceded by the plaintiff once or twice a year and continue for a few to be navigable to that point. From the junc | hours at a time; that logs could not be floattion of the two streams towards its source, ed at ordinary high water, but they would the North Fork is a shallow tortuous stream, stop on the bars and along the banks; that from 10 to 60 feet wide. For about half the more damage was done to the banks durdistance through plaintiff's land it consists ing the winter of 1903 by the operation of of riffles or shoals, and the water is but a few defendants' splash dam than in the entire 20 inches deep, in the summer time, and from years he had lived on the stream, and that 142 to 2 feet deep during the ordinary winter logs had been left higher on the banks than freshets. At places the banks on one side are
by the winter floods; that within three from 4 to 6 feet high; the opposite bank grad- weeks prior to the trial in July, 1904, de ually sloping back to the meadow land. The fendants had flushed down the stream, by soil is alluvial, and easily eroded in time of means of their dam, about 100,000 feet of logs, high water, and plaintiff has expended large which had lodged above his place, and there sums of money in constructing embankments was great danger of their carrying away his and other improvements to preserve the
house. James Leahy, who had lived on the banks. In the fall of 1903 the defendants stream above plaintiff's place for more than went upon the stream, about 2 miles above 20 years, testified that during the winter plaintiff's land, and constructed a dam 28 of 1903 and 1901 there was but one freshet feet high for use in their logging operations, sufficient to float logs, and then only small which dam is provided with four gates-three ones, and that it did not continue for more trip gates, each 8 feet wide and 16 feet high, than three hours; that some years there and one slide gate, 6 feet wide and 24 feet would be three or four freshets, depending high. By means of this dam the defendants upon the rainfall, but they would only conare enabled to impound a large volume of tinue two or three hours; that the running water, which they suddenly release and al- of logs by defendants during the winter of low to flow down the channel to suit their 1903 and 1904 caused more damage than the convenience.
natural wash of the stream for the previous Many witnesses were called and testified 20 years. Michael Leahy and Charles Gilin behalf of both parties as to the character liam, who live on the stream, say that the and capacity of the stream. They differ as water is from 212 to 3 feet deep during the to whether logs can be floated down it with- ordinary winter freshets, and not sufficient out the aid of dams. The witnesses for plain
to float any but small saw logs. Gilliam testiff, most of whom are farmers or landown- tified that some 12 or 15 years ago he put ers along the stream or in the vicinity, all 137 logs in the stream and got one out the concur in opinion that it cannot be so used;
first year, and that six or seven of the smallwhile the witnesses for defendants, most of er ones came down to plaintiff's place; that whom are loggers or mill men, are equally
he tried to get the logs out, but could not do positive that it can. But, while the witness- So for want of water, and had to abandon es differ in their opinions, there is no sub- the enterprise; that logs would go down stantial conflict in the facts as testified to by from a quarter to a half mile during a freshthem. They all agree that the stream is
et, and then the water would recede and not floatable except in times of winter fresh- leave them in the channels of the stream or ets, and that such freshets do not ordinarily along the banks; that some of the logs were occur more than three or four times a year, still in the stream, and others came out durand continue but a few hours at a time. ing the winter of 1903, when defendants Christian Peterson, who was plaintiff's fore- were operating their splash dam; that logs man, and lived upon his farm for 2+ years which had laid in the stream for 15 or 16 prior to 1902, testified that during the ordi- years and were not carried out by ordinary nary winter freshets the water was from winter freshets were floated out by water 142 to 2 feet deep in the riffles and shoal from the splash dam. Stephen Thies, who places, and would not float logs, but there had charge of plaintiff's farm from April, might be two or three days in the year dur- 1902, to date of trial in July, 1901, testified ing which small logs would float down the that during the winter of 1902 and 1903 stream: that the freshets would continue there were two or three freshets, one of sometimes a couple of hours, and sometimes which was extremely high, and continued a half a day, and the water would fall as from 10 to 12 hours; that during ordinary rapidly as it came up; that some years ago
winter freshets the water was from 2 to 3
feet deep in shoal places, and not that during the winter of 1903 and 1904; that in June, 1904, the defendants were running logs down the stream by use of their splash dam; that they opened the dam and allowed the accumulated water to come down the stream, bringing logs with it, perhaps 20 times during the winter; that they were not able by this means to get all the logs out, but many of them were left on the banks and lowland along the stream, and there has been no time since defendants commenced the operation of their dam that plaintiff's land has been free of logs. Frank Buxton, who was employed on plaintiff's farm, testified that the stream was flushed by defendants during the winter of 1903 and 1904 from 25 to 30 times, raising the water 2 or 3 feet above its natural stage; that there was a rise of water during the winter from natural causes sufficient to float small logs.
Most of the witnesses for defendants do not live on the stream and have no actual knowledge of its conditions, but testified as to their opinion from an examination of the stream and their general knowledge of the climatic conditions of the surrounding country and its waterways. They generally agree that not more than from two to five freshets, sufficient to float logs, may reasonably be expected in the streams of that vicini. ty each year, continuing, as a rule, from 6 to 12 hours, but there were no such freshets during the winter of 1903 and 1901. Wallace and J. C. Dunkin, who were employed by defendants, testified that there was not more than one logging freshet during the winter of 1903 and 1904, and that the splash dam, operated by defendants, would raise the water as high as an ordinary freshet. Fred Normand, one of the defendants, says there are ordinarily from three to five freshets a year, depending upon the amount of rainfall, and last from 3 to 5 hours; that defendants' splash dam was constructed in the fall of 1903, and there was once during the succeeding winter that logs would float down the stream in its natural stage; that defendants were careful not to open the dam so as to overflow the banks of the stream and carry the logs out on the meadow, nor in the summer time, “because we do not want to overflow the bottom land." Alex Normand, the other defendant, said that four or five freshets may be reasonably expected each year, and they usually last from 5 to 6 and 10 to 12 hours, and that, by assisting them, "we can run logs for a day and a half or two days"; that their dam will raise the water in the stream about four feet, when a full head is turned down, but hardly as high as an ordinary freshet; that defendants used the dam for scattering logs along the stream, and “to assist them on down, so we can market them and not have to wait for freshets, as we would otherwise have to do"; that during the winter of 1903 and 1904 they were able, by use of their dam, to float
down to tide water from 1,700,000 to 2,000,000 feet of logs, for about four miles, which they expected to splash out during the succeeding winter.
We have made this extended reference to the testimony because whether a given stream is, in law, navigable or floatable, depends upon the facts, and a decision in one case cannot be regarded as a precedent in another, unless the facts are the same. From the testimony of the witnesses, both for plaintiff and defendants, it is apparent, we think, that the Klaskanie, where it flows through plaintiff's land, is not, in its natural condition, floatable for logs, because it is not capable of serving any important public use. Logs cannot be floated therein except, perhaps, at extreme high water continuing for a few hours at a time, and then only small logs. It would be going beyond any precedent of which we have knowledge to hold that such a stream is a public highway; and. since it is not such highway in its natural condition, it cannot be made so, by means of a splash dam or other artificial structures, without first acquiring the rights of the riparian proprietors.
It is suggested that, in view of the great lumber interests in the state, the publie good would be subserved by holding that streams like the North Fork of the Klaskanie are public highways for the floating of saw logs; but this argument can have no bearing whatever upon the question. The magnitude or importance of any business or industry will not justify the slightest encroachment upon the rights of the citizen, and, unless a stream is in fact navigable or floatable, it cannot be taken or used without the consent of the owner, except by due process of law, however beneficial it might be to private interest or the public itself. It is often the case that the public good would be subserved by taking one man's property for the benefit of the community; but, as already quoted from Judge Cooley, "it neither should be nor can be done under any circumstances without observing the only condition on which it can be permitted in constitutional government, namely, that the private proprietor be compensated for the value which he surrenders to the public."
The decree will be reversed, and one entered here for plaintiff.
(50 Or. 233) LEAVENGOOD v. McGEE et al. (Supreme Court of Oregon. Aug. 20, 1907.) 1. APPEAL-DISMISSAL-DEFECTS IN RECORD.
Where, in a suit to set aside a conveyance as in fraud of creditors, a transcript was filed on appeal, including copies of the findings, the decree, notice of appeal, and appeal bond. a motion to dismiss the appeal, on the ground that the original testimony and other papers on which the decree was based had not been transmitted to the clerk of the Supreme Court, as required by B. & C. Comp. $ 553, subd. 1, and rule 1 of the Supreme Court (37 Pac. v), was without merit, as the filing of the testimony was
not necessary to confer jurisdiction, and there real property ; that, in fact, no contract was might be questions arising on the pleadings. made by and between P. T. McGee and the [Ed. Note.-For cases in point, see Cent. Dig.
corporation for the purchase of real property vol. 3, Appeal and Error, $ 3126.]
described in the deed; but that the convey2. BANKRUPTCY-ACTIOX BY TRUSTEE — CoxDITIONS PRECEDENT.
ance was voluntary, and wholly without conIn order for a trustee in bankruptcy to
sideration, and made with the intent and purmaintain a suit to set aside a conveyance by the pose of putting the title in such a condition bankrupt as fraudulent, he must show by the
that it could not be reachel by McGee's credrecord of the referee in bankruptcy that he has followed the procedure pointed out by the bank
itors. The second deed is alleged to have rupt act and that the claims on which he bases been made on March 2, 1902, by the McGee his action have been ascertained and established.
Company, conveying the same property to [Ed. Note.-For cases in point, see Cent. Dig.
James T. McGee, also a son of P. T. McGee, vol. 6, Bankruptcy, $ 121.]
for the expressed consideration of $1,000, 3. APPEAL AND ERROR-RECORD-SUPPLYING DEFICIENCIES.
when the company was in failing circumWhere the record on appeal is deficient in stances and unable to meet its liabilities, and any respect, it may be supplied on order at any was in fact insolvent; that the execution time before the final disposition of the cause. of the deed was not authorized by any acting
[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 2816.]
board of the corporation, and was without 4. FRAUDULENT CONVEYANCES PLEADING
consideration, and was made for the purpose COMPLAINT.
of putting the property beyond the reach of In a suit to set aside a conveyance as in the creditors of P. T. McGee and of the corfraud of creditors, the facts upon which the suit | poration, with the intent and for the purpose is predicated must be specially pleaded.
of defrauding them. It is also further al5. SAME-EVIDENCE-SUFFICIENCY. In a suit to set aside a conveyance as in
leged that since the making of this conveyfraud of creditors, evidence considered, and held ance P. T. McGee has had the management insufficient to warrant a decree for plaintiff. and control of the property thereby conveyed [Ed. Note.-For cases in point, see Cent. Dig.
to James T. McGee, and has collected the vol. 24, Fraudulent Conveyances. $$ 867-908.)
rents, and has assumed to be, and is in fact, 6. CORPORATIONS-DE FACTO CORPORATION. Where a corporation has attempted to do the
the owner of the property ;
of the property; that claims business which it was authorized to do by its
amounting to about $1,500 have been presentcharter, it is, irrespective of defects in organiza- ed and allowed against the estate of P. T. tion, a corporation de facto.
McGee, and that the debts which are the [Ed. Note. For cases in point, see Cent. Dig.
basis of these claims were incurred at divers vol. 12, Corporations, $ 70.]
dates between January 1, 1897, and December 7. SAUE-ATTACKING VALIDITY OF INCORPORATION.
1, 1901 ; that the assets of the estate amount The legality of the organization of a corpo- to no more than the sum of $60. A demurrer ration, wbich appears to be at least one de facto, to the complaint was interposed, assigning all cannot be inquired into in any action other than one by the state.
of the grounds allowed by statute, which be[Ed. Note. For cases in point, see Cent. Dig.
ing overruled, J. T. McGee answered sepavol. 12, Corporations, $8 77-80.]
rately, with a general denial of the com
plaint, and alleging affirmatively that about Appeal from Circuit Court, Douglas Coun
March 1, 1898, P. T. McGee and his wife sold ty; J. W. Hamilton, Judge.
and conveyed the real property mentioned in Suit by C. J. Leavengood, as trustee in
the deed, together with some store fixtures bankruptcy of P. T. McGee, against James T.
and a stock of goods, to the defendant comMcGee and others. From a decree in favor
pany for the consideration of $2.600; that of plaintiff, defendants appeal. Reversed.
the corporation held the title and the posPlaintiffsues, as a trustee in bankruptcy session of the lots until December 14, 1900, of P. T. McGee, a bankrupt, to set aside, as when it sold and conveyed the lots to him fraudulent as to his creditors, two deeds ulti- for the sum of $1,000, which he paid, and mately conveying to J. T. McGee certain lots that his transaction with the company was in the town of Myrtle Creek, Douglas coun- in good faith, without notice or knowledge ty. James T. McGee and Ruth, his wife, of any intended fraud by P. T. McGee or by Frances, wife of P. T. McGee, and the Mc- the company upon his or its creditors. The Gee Company, a corporation, are made de- remaining defendants answered jointly to fendants. The first of these deeds is alleged the same effect. Plaintiff replied, denying to have been made on November 29, 1897, by the new matter of the separate answers. The .P. T. McGee and his wife, for the expressed cause was referred to a referee for the takconsideration of $2,600, to the McGee Compa- ing of testimony, and, on his report coming ny, which was incorporated on that date by in and being considered by the court, findings P. T. McGee, his wife, and son Hugh, with a were made in plaintiff's favor, and thereon capital stock of $5,000, for the purpose of a decree was entered, setting aside each of carrying on a general merchandise business the deeds, and the property ordered sold and at Myrtle Creek. But it is alleged that no the proceeds applied to the payment of the stock was subscribed or paid for; that the indebtedness of P. T. McGee, as allowed in corporation was not organized, and for that the administration of his estate as a bankreason had no power or authority to make rupt. From this decree all of detendants or enter into a contract for the purchase of appeal.
C. S. Jackson, for appellants. J. C. Fuller- 70, subd. “e," Bankr, Act Cong. July 1, 1898 ton, for respondent.
[U. S. Comp. St. 1901, p. 3452]), which is as
follows: "The trustee may avoid any transOn Motion to Dismiss.
fer by the bankrupt of his property, which SLATER, C. (after stating the facts as
any creditor of such bankrupt might have above). At the hearing in this court a mo
avoided, and may recover the property so tion to dismiss the appeal was entered by transferred, or its value, from the person to plaintif on the ground that the original whom it was transferred, unless he was a testimony, and other papers in this cause,
bona fide holder for value prior to the date on which the decree of the circuit court was
of the adjudication. Such property may be based, had not been transmitted to the clerk
recovered or its value collected from whoever of this court as required by section 553, subd.
may have received it, except a bona fide hold1, B. & C. Comp., and by rule 1 of this court
er for value." This rule that a creditor must (37 Pac. v). Before argument thereon de
reduce his claim to a judgment before he will fendants filed a counter motion, supported by be allowed to attack in a court of equity a an affidavit, for an order on the county clerk
conveyance of his debtor for fraud is based of Douglas county requiring him to com
upon two reasons: (1) That the claim must plete the record by forwarding all the testi
be a liquidated claim, so that an equity court mony and exhibits produced at the trial in
will not be required to stop and inquire into the court below. A transcript in this case
the validity of the claim. The object of a was filed in this court on June 15, 1906,
creditors' bill is not to ascertain or determine which, besides the pleadings, includes copies
the amount and validity of the claim or debt, of the findings, the decree, notice of appeal,
but that is the province of the law. (2) A and undertakicg on appeal. No question is
judgment and the issuance of an execution made by plaintiff that any of the necessary
and its return nulla bona is required as an steps to perfect the appeal were omitted or
evidence that all of the remedies at law have were not taken in the time required by law
been exhausted before resort is made to to confer jurisdiction upon this court of the
equity. This is the reason of the law, but cause, and the filing of such a transcript
there are exceptions to the general rule. here did confer jurisdiction. The filing of
Note to section 1415, Pomeroy's Equity. a the testimony was not necessary to confer
judgment is not necessary to enable a trustee jurisdiction, and its absence would not de
in bankruptcy to maintain a suit to set aside stroy that jurisdiction, for there may be
transfers of property by the bankrupt in questions arising upon the pleadings to be
fraud of creditors, since under the banktried on appeal, as well as whether the decree
ruptcy act neither the trustee nor the creditor is supported by the pleadings and the find
whom he represents could obtain such a judg. ings; but the absence of the testimony would
ment. Mueller v. Bruss, 112 Wis. 406, 88 N. prevent this court from trying the case de
W. 229. But a method is provided by the novo on the facts. The plaintiff's motion,
procedure in bankruptcy whereby the claims however, amounts to a suggestion of a diminu
of creditors may be legally adjudicated and tion of the record, and the deficiency may
before the trustee should be permitted to atbe supplied on order at any time before the
tack by a suit in equity the conveyance of the final disposition of the cause. B. & C. Comp.
bankrupt he shall allege and prove by the $ 445. The motion, therefore, must be denied,
record of the referee that such procedure has and, the testimony having been received by
been followed and that the claims on whi the clerk since the submission of the case, it
he bases his contention have been ascertained should be ordered filed.
and established. In this case the claim of On the Merits.
Edwin Weaver, amounting to $97, dated JanIt will not be necessary to separately con- uary 8, 1901, is, according to the contention sider the questions raised by the demurrer, of plaintiff, of some importance, because of but it will be considered and disposed of the close proximity of the date of its ocalong with the merits. On behalf of defend- currence to the date of the deed from the ants the contention is made that, before a McGee Company to James T. McGee. But creditor can maintain a suit to set aside as the rightfulness of it is assailed by the defraudulent a conveyance of his debtor, he fendants, who claim the note upon which the must either establish his claim by judgment claim is based has been paid in full and or acquire a lien by attachment; and such is $3.72 overpaid. The claim has not been actthe rule in this state. Dawson v. Coffey, 12 ed upon by the referee, and hence it cannot Or. 513, 8 Pac. 838; Dawson v. Sims, 14 Or. be made a basis for a suit of this character. 561, 13 Pac. 506: Bennett v. Minott, 28 Or. It is difficult, however, to determine from 339, 39 Pac. 997, 44 Pac. 288; Matlock v. the averments of the complaint upon what Babb, 31 Or. 516. 49. Pac. 873; Fleischner v. particular ground of fraud plaintiff relies to Bank of McWinnville, 36 Or. 553, 54 Pac. avoid the deeds. It is alleged that the deed $84, 60 Pac. 603, 61 Pac. 315. And they fur- by McGee and wife to the corporation was ther contend that a trustee in bankruptcy, made with the intention of putting the title baving no greater authority, is bound by the beyond the reach of his creditors, and that same rule, citing 30 Stat. 506, c. 541 (section | it was in fraud of his creditors; but it is uut