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prietors by retarding the flow of the water of the stream for valuable public use in its or sending it down in increased volumes, to natural condition, and any attempt to create his injury or at times when the stream would capacity at other times at the expense of not otherwise be navigable. And this rule private interests can be justified only on an is not changed by the fact that a stream can- assessment and payment of compensation." not be successfully used for logging purposes Monroe Mills Co. v. Menzel, supra, was a suit without such artificial aids to navigation on to enjoin the defendant from using the West the ground of necessity. In Booming Co. V Fork of Woods creek for floating shingle Speechly and Koopman v. Blodgett, supra, bolts and from maintaining a splash dam the Supreme Court of Michigan had occasion thereon. The court held the stream to be navito consider the right to make a stream, which

gable or floatable during the freshets which is navigable only at certain seasons of the

occur with periodic regularity in the spring year, navigable at other times by impound

and fall of each year, but that the detention ing the water until a flow sufficient to float

of the water by means of a dam, and the logs could be caused. In the former case,

release thereof at irregular intervals, causing Mr. Justice Cooley, after reviewing the Maine

the stream to overtlow and washing the lands and Michigan cases, quoting with approval

of the lower riparian proprietor, was such an what is said to be the true rule by the New

interference with the natural flow of the waYork Court of Appeals, noting the fact that

ter as would be enjoined. And in Matthews all the cases carefully restrict, within the

V. Belfast Mfg. Co.. supra, it was held that bounds of capability for use in their ordinary

the floating of logs down a stream, by means and natural condition, the public easement

of dams and artificial freshets, at the time in streams navigable only at certain seasons

of the year when it is not navigable in its of the year, and holding that a stream is

natural state, is an abuse of the right of navigable during the period the water in its

navigation for which an injunction will lie natural condition is sufficient to permit of a

at the suit of riparian owners injured there. public use, he says: “During that time the

by, and that a private corporation which is public right of floatage and the private right of the riparian proprietors must each be ex

not a boon company is not entitled to exer

cise the right of eminent domain against a ercised with due consideration for the other, and any injury which the latter receives in

lower riparian owner, for the purpose of fa

cilitating the floating of logs down a stream consequence of a proper use of the stream

by means of dams and artificial freshets, for floatage he must submit to as incident to his situation upon navigable waters. Middle

which damages the lower proprietor and in

terferes with his use of the stream. In fact, ton v. Booming Company, 27 Mich. 533. But at periods when there is no highway at all

our attention has not been called to a case, there is no ground for asserting a right to

nor have we been able to find one, sustaining create a highway by means which appropri

the right to maintain dams or other artificial ate or destroy private rights. The doctrine

structures in a stream whereby the water is that this may be done without compensation

impounded and let down in such a head or to parties injured is at war with all our

volume as to make the stream navigable, ideas of property and of constitutional rights.

when it would not otherwise be so, unless it The most that can be said of this stream,

be in the states of Maine, Wisconsin, and Minduring the seasons of low water, is that it is

nesota, where the construction of dams in capable of being made occasionally navigable

floatable streams to facilitate their use is auby appropriating for the purpose the water

thorized by statute. Brooks v. Cedar Brook, to the natural flow of which the riparian pro

etc., Imp. Co., 82 Me. 17, 19 Atl. 87, 7 L. R. A. prietors are entitled. It is highly probable,

100, 17 Am. St. Rep. 459; Kretzschmar v. in view of the large interests which are con

Meehan, 74 Minn. 211, 77 N. W. 41; Field and cerned in the floatage, that the general pub

Others v. Apple River Log Driving Co., 67 lic good would be subserved by so doing; but

Wis. 369, 31 X. W. 17. this fact can have no bearing upon the legal

Having thus ascertained that a stream, to question. It is often the case that the public

be navigable or floatable for saw logs, must good would be subserved by forcing a pub- be capable in its natural condition at ordilic way through private possessions : but it nary recurring freshets of being successfully neither should be nor can be done under any

and profitably used for that purpose, and circumstances without observing the only that a stream not navigable or floatable in condition on which it can be permitted in its natural condition cannot be made so by constitutional government, namely, that the artificial means, nor can the capacity of a private proprietor be compensated for the navigable stream be increased by such means value which he surrenders to the public. to the injury of a riparian proprietor without

As was remarked in Morgan v. King. compensation, we are now prepared to con33 N. Y. 160, 91 Am. Dec. 67, the question of sider the parts of the particular case before public right in a case like this is to be decid- us and determine the respective rights of the ed without reference to the effect which arti- parties litigant. The plaintiff is the owner ficial improvements have had in the navi- of 180 acres of land, most of which is bottom gable capacity of the river; in other words, or meadowland and has been extensively the public right is measured by the capacity | 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 112 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 streau: 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 dur- down to tide water from 1,700,000 to 2,000,ing the winter of 1903 and 1904; that in June, 000 feet of logs, for about four miles, which 1904, the defendants were running logs down they expected to splash out during the sucthe stream by use of their splash dam; that ceeding winter. they opened the dam and allowed the accu- We have made this extended reference to mulated water to come down the stream, the testimony because whether a given bringing logs with it, perhaps 20 times dur- stream is, in law, navigable or floatable, deing the winter; that they were not able by pends upon the facts, and a decision in one this means to get all the logs out, but many case cannot be regarded as a precedent in anof them were left on the banks and lowland other, unless the facts are the same. From along the stream, and there has been no time the testimony of the witnesses, both for since defendants commenced the operation of plaintiff and defendants, it is apparent, we their dam that plaintiff's land has been free think, that the Klaskanie, where it flows of logs. Frank Buxton, who was employed through plaintiff's land, is not, in its natural on plaintiff's farm, testified that the stream condition, floatable for logs, because it is not was flushed by defendants during the win- capable of serving any important public use. ter of 1903 and 1904 from 25 to 30 times, Logs cannot be floated therein except, perraising the water 2 or 3 feet above its nat- haps, at extreme high water continuing for a ural stage; that there was a rise of water few hours at a time, and then only small during the winter from natural causes suffi- logs. It would be going beyond any precedcient to float small logs.

ent of which we have knowledge to hold Most of the witnesses for defendants do that such a stream is a public highway; and, not live on the stream and have no actual since it is not such highway in its natural knowledge of its conditions, but testified as condition, it cannot be made so, by means of to their opinion from an examination of the a splash dam or other artificial structures, stream and their general knowledge of the without first acquiring the rights of the ripaclimatic conditions of the surrounding coun- rian proprietors. try and its waterways. They generally It is suggested that, in view of the great agree that not more than from two to five lumber interests in the state, the public freshets, sufficient to float logs, may reason- good would be subserved by holding that ably be expected in the streams of that vicini- streams like the North Fork of the Klaskanie ty each year, continuing, as a rule, from 6 to are public highways for the floating of saw 12 hours, but there were no such freshets logs; but this argument can have no bearing during the winter of 1903 and 1901. Wal- whatever upon the question. The magnitude lace and J. C. Dunkin, who were employed or importance of any business or industry by defendants, testified that there was not will not justify the slightest encroachment more than one logging freshet during the upon the rights of the citizen, and, unless a winter of 1903 and 1904, and that the splash stream is in fact navigable or floatable, it dam, operated by defendants, would raise cannot be taken or used without the conthe water as high as an ordinary freshet. sent of the owner, except by due process of Fred Normand, one of the defendants, says law, however beneficial it might be to prithere are ordinarily from three to five fresh- vate interest or the public itself. It is often ets a year, depending upon the amount of the case that the public good would be subrainfall, and last from 3 to 5 hours; that de- served by taking one man's property for the fendants' splash dam was constructed in the benefit of the community; but, as already fall of 1903, and there was once during the quoted from Judge Cooley, "it neither should succeeding winter that loss would float down be nor can be done under any circumstances the stream in its natural stage; that defend- without observing the only condition on ants were careful not to open the dam so as which it can be permitted in constitutional to overflow the banks of the stream and car- government, namely, that the private propriry the logs out on the meadow, nor in the etor be compensated for the value which he summer time, “because we do not want to surrenders to the public.” overflow the bottom land.” Alex Normand, The decree will be reversed, and one enthe other defendant, said that four or five tered here for plaintiff. freshets may be reasonably expected each year, and they usually last from 5 to 6 and

(50 Or. 233) 10 to 12 hours, and that, by assisting them,

LEAVENGOOD V. McGEE et al. "we can run logs for a day and a half or two days"; that their dam will raise the

(Supreme Court of Oregon. Aug. 20, 1907.)

1. APPEAL-DISMISSAL-DEFECTS IN RECORD. water in the stream about four feet, when a

Where, in a suit to set aside a conveyance full head is turned down, but hardly as as in fraud of creditors, a transcript was filed high as an ordinary freshet; that defend- on appeal, including copies of the findings, the ants used the dam for scattering logs along

decree, notice of appeal, and appeal bond. a

motion to dismiss the appeal, on the ground that the stream, and “to assist them on down, so the original testimony and other papers on we can market them and not have to wait which the decree was based had not been transfor freshets, as we would otherwise have to mitted to the clerk of the Supreme Court, as do"; that during the winter of 1903 and 1901

required by B. & C. Comp. $ 553, subd. 1, and

rule 1 of the Supreme Court (37 Pac. v), was they were able, by use of their dam, to float 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

itors. followed the procedure pointed out by the bank

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, $ +21.]

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, $8 867-908.)

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 INCORPOBATION.

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 Yovember 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 $3,000, 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 On Motion to Dismiss.

follows: "The trustee may avoid any trans

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 plaintife 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 undertaking 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 final disposition of the cause. B. & O. Comp.

tack by a suit in equity the conveyance of the .

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 which 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.

$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 McMinnville, 36 Or. 553, 54 Pac. avoid the deeds. It is alleged that the deed 984, 60 Pac. 603, 61 Pac. 345. And they fur

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

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