into the main waters of Lake Coeur d'Alene beyond; and that, by reason of said openings so negligently and carelessly maintained in said sorting works, the logs belonging to the defendant and others became entangled, and were, by the force of the current, driven through said works and out into Lake Cœur d'Alene beyond. This finding seems to be sustained by substantial evidence. The appellant at said time was not attempting to use its works in any manner whatever, and it refused to keep its jacks closed so that others could have the reasonable use of the river in floating their logs.

In regard to the sheer boom placed along the south side of the river parallel to appellant's sorting works, it was the intention of the respondent, as shown by the record, to only temporarily maintain this boom for the purpose of protecting its logs from being lost by going through said openings in the works of appellant and out into the lake. The evidence shows that the boom placed by respondent on the north side of the river in front of lot 4 was only for a short time attached to some brush or a tree until other arrangements for maintaining it for the purposes then required could be made. There after it was attached to a cluster of piling

situated in the river near the south side of

tion with floating and handling logs by parties engaged in that business, the court said: "The construction and use of booms is a necessary adjunct to the floating of logs; without them it would frequently be impossible to handle the logs where wanted for use. The right to float logs down a stream carries with it the necessary resultant right of employing some reasonable means for intercepting them at their destination."

Without reviewing at length the authorities presented by the briefs of counsel in this case on the subject, we think the doctrine of this court as to the right of obstructing the river by parties engaged in using the same for any legitimate purpose is very clearly stated in Small v. Harrington, supra, as follows:

"The rule governing cases of this character is that all parties interested in the free use of a navigable stream are subject to conditions that may exist in each particular case. No one has the right to arbitrarily obstruct a stream to the detriment or injury of his neighbor; each one is entitled to the free and reasonable use of the navigable streams of this state, and may place such reasonable obstructions on the stream so long as they serve a useful and beneficial purpose and leave a reasonable use to others interested. If an obstruction merely impairs or renders more difficult the navigation, without destroying it, an individual has no rightful cause for complaint, because he has no right to insist on the best possible accommoda

tion."

dence, and do not think it would serve any useful purpose in disposing of this case for us to comment upon them; as our views upon the main questions presented by this appeal have been expressed already by what we have said in deciding the points which we have now considered and passed upon.

Having reached the conclusion that there is no reversible error presented in this case, the judgment of the lower court is therefore affirmed.

There are some other objections urged by the same. This south bank of the river along appellant to the findings of fact and conclulot 4 of the land of appellant is low, and dur- sions of the lower court, but we have carefuling high water was almost entirely sub-ly examined them in connection with the evimerged thereby, and along this low bank of the river a large quantity of underbrush or shrubbery is growing into which logs coming down the river are carried by force of the current and lodged or lost, if not by some means protected from doing so. The record also shows that lot 4 is a low, swampy piece of land through which runs a canal or ditch known as Howell's ditch, and when the water is high this ditch fills with water and backs out across lot 4, and the evidence shows that said sheer boom was only placed there to prevent logs from going out through said ditch and brush over this swampy land and lodging there or being lost. At that time the appellant was not using this land for any purpose, and the piling to which this sheer boom along the north side of the river was attached did not constitute any part of appellant's works, and had not been driven in the river by it, but was placed there by the Northern Pacific Railroad Company some years before for the purpose of marking the channel of the river. Under such circum

stances and conditions as confronted the respondent at the time it placed and maintained said sheer boom in the river, if it had not been permitted to do so, the right to use the river for the purpose of floating logs would have been of no practical benefit to it.

Costs awarded to the respondent.

SULLIVAN, C. J., and BUDGE, J., con

cur.

(26 Idaho, 649) STACK-GIBBS LUMBER CO. v. CAMERON LUMBER CO. (Supreme Court of Idaho. Dec. 28, 1914.) Appeal from District Court, Kootenai County; Robert N. Dunn, Judge.

Injunction by the Stack-Gibbs Lumber Company, a corporation, against the Cameron Lumber Company, a corporation. From judgment for plaintiff, defendant appeals. Affirmed.

McFarland & McFarland, of Coeur d'Alene, for appellant. Whitla & Nelson, of Coeur d'Alene, and Voorhees & Canfield, of Spokane, Wash., for respondent.

TRUITT, J. This action was commenced by the respondent, as plaintiff in the lower court, In Powell v. Springston Lumber Co., 12 against the appellant, as defendant in the said court, for the purpose of restraining and enIdaho, 723, 88 Pac. 97, on this question of joining said defendant from interfering with the maintaining a boom on the river in connec-plaintiff's receiving booms, sorting works and

144 P.-71

stanter, which they did, admitting the princi-missioners have authority under the law to [4] We therefore hold that the county compal allegations of the complaint, but denying that they, as a board, were about to issue said bonds without any warrant or authority of law, and averred that said bonds were regularly and legally issued in accordance with the provisions of the statutes of the state of Idaho in such cases made and provided.

"The board of county commissioners of any county in this state, may issue negotiable cou- A street having been laid out 80 feet wide pon bonds of their county for the purpose of on an unacknowledged plat of a town addition, paying, redeeming, funding or refunding the the owner conveyed a plot of ground by metes outstanding indebtedness of the county, as here- and bounds, which tract included the premises inafter provided, whether the indebtedness ex- in dispute and all of the street on the west line of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

a certain block. Eight years thereafter the then and alleys, reciting the names of the streets owner replatted the vacant land lying south and the widths thereof, and the numbers of and west of the block showing a dedication of the blocks and lots. Hurt street ran north the streets and alleys appearing on the prior plat, with the exception that the disputed prem- and south along the west line of block 10. ises were shown to be excluded from the plat The land in dispute is 150 feet north and as originally platted, leaving that street only south by 50 feet east and west, and adjoins 50 feet. Defendant purchased the premises in the north half of block 10 on the west, being dispute from the grantee of the original owner, built a residence thereon in 1904, and was there- wholly within the lines of Hurt street, as after in actual occupancy and possession of the marked on the plat. The plat was not ac disputed 30 feet to the time of the commence- knowledged. Between the date of filing the ment of the suit. There never had been any plat and October, 1903, Hurt executed and act on the part of the public indicating an acceptance of the offer of the dedication of an 80- delivered deeds to divers persons, at differfoot street, or was the street at that point everent times, therein conveying lots and tracts used for public travel; it had never been grad- of ground, in each of which deeds reference ed or improved, nor had anything been done to evince an intention on the part of the town was specifically made to such plat for identito use it as a public thoroughfare. Held that, fication of the land conveyed, and reciting defendant having been in undisputed possession that the plat was on record in the office of and in peaceable occupancy of the property for said county clerk and recorder. On January more than seven years, the town was thereafter estopped to claim a completed dedication of the 26, 1900, Hurt conveyed to David Miles a strip in controversy. plot of ground, by metes and bounds, of the dimensions of about 835 by 550 feet, which tract included the premises in dispute and all of Hurt street on the west line of block 10. Defendant acquired the premises in dispute from said Miles. She built a residence thereon in 1904, and was thereafter in actual possession of the disputed premises up to and at the time this suit was commenced. In

[Ed. Note.-For other cases, see Dedication, Cent. Dig. § 77; Dec. Dig. § 39.*]

Error to District Court, Rio Grande County; Chas. C. Holbrook, Judge..

Ejectment by the Town of Center against Susie E. Collier. From a judgment for defendant, plaintiff brings error. Affirmed.

S. M. True and J. I. Palmer, both of Sa- October, 1908, said Miles signed, acknowlguache, for plaintiff in error. James P. Veer-edged, and filed with said clerk and recorder kamp, of Monte Vista, for defendant in error.

a plat of "Miles Subdivision, in the Town of Center," which showed the vacant land lying HURLBUT, J. On January 8, 1912, plainsouth and west of block 10 to be platted into tiff in error (plaintiff below, and herein calllots and blocks, and also showed thereon a ed "plaintiff") instituted this action against defendant, to recover possession of a piece of continuation of the streets and alleys appearland within its corporate boundaries. The ing on the Hurt plat, with the exception that the disputed premises were shown to be excomplaint alleges that plaintiff is the owner cluded from Hurt street as originally platted, of an easement over, and entitled to the possession of, a certain street known as Hurt leaving that street only 50 feet wide west of street; that defendant is in possession and those premises, whereas the streets generally has refused to deliver possession after de were 80 feet wide; the acknowledgment remand therefor; and that defendant wrong-citing that the streets and alleys shown on the plat were thereby dedicated to the public fully withholds possession from plaintiff. use forever. The answer admits that defendant is in posAt, and prior to, the date of session of the premises, but alleges she is the filing the Miles plat, that tract, with the exowner thereof, and denies every other allega- ception of the disputed premises, was a field, tion in the complaint. The case was tried inclosed by fence, had been cultivated by to the court without the intervention of a either Miles or Hurt, and the alleged street jury, and judgment went for defendant, to never had been used by the public. which exception was saved, and the case is here for review.

The uncontroverted facts being as above stated, plaintiff contends that the filing of the plat by Hurt, his subsequent deeds for lots and land included within the platted premises, and his reference in such deeds to the recorded plat for further description, constituted a complete and irrevocable dedication, on his part, to the town of Center, of all the streets and alleys shown on the plat, including Hurt street; and that when he thereafter deeded the tract to Miles, which included Hurt street on the west line of block 10, Miles took title to the same subject to the easement created by Hurt's dedication.

It appears from the record and briefs that only one question need be considered in order to determine this appeal, and that is: Was there a complete common-law dedication of Hurt street to the public? The following enumerated facts may be said to be conclusively established by the evidence: On December 28, 1898, J. L. Hurt, then being the owner of the land upon which the townsite is located, filed for record in the clerk and recorder's office of Saguache county a plat which bore on its face the inscription, "Map of Centerview, Saguache County, Colorado," and which showed the land therein describ- On the other hand, defendant contends ed as being platted into blocks, lots, streets that there never was such a dedication by

Hurt; that the filing of the plat and the subsequent acts of Hurt in deeding to divers persons numerous lots by reference thereto amounted only to an offer of dedication; that the town never accepted the same, either directly or by implication; hence Hurt had a right to revoke the offer before acceptance, which, she claims, he did, by conveying the tract to Miles.

[1] It is conceded that there was no statutory dedication, because of the absence of an acknowledgment of the Hurt plat.

or plat which the owner may not withdraw at his pleasure, further hold that under certain circumstances the public may lose its right to accept such offer, and if before such acceptance the offer is revoked, or the public has otherwise lost its right to accept, the municipality loses its right to the public places designated on such plat. City of Denver v. D. & S. F. R. Co., 17 Colo. 583, 31 Pac. 338; Mouat Lumber Co. v. City of Denver, 21 Colo. 1, 40 Pac. 237; Trine v. City of Pueblo, 21 Colo. 102, 39 Pac. 330; Overland M. Co. v. Alpenfels, 30 Colo. 163, 69 Pac. 574; Town of Manitou v. Int. Trust Co., 30 Colo. 467, 70 Pac. 757.

In City of Denver v. D. & S. F. R. Co., supra, it is held that, unless otherwise provided by statute, a dedication of a way, without acceptance, is in law merely an offer to dedicate, and that such offer does not impose any burden or confer any right on the public authorities, unless the road is accepted as a highway.

In Mouat Lumber Co. v. City of Denver, supra, the court referred to and approved the doctrine of the Clements Case, as hereinbefore stated, but held directly that, notwithstanding an offer to dedicate, the city may lose its right to accept, and, under the circumstances in that case, that prima facie the city had lost its right. We quote from the opinion:

[2] It seems to be well settled that a common-law dedication operates by way of estoppel in pais, and not by virtue of a grant from the dedicator; also, that such dedication, in order to be complete, must be accepted. Many states, including Colorado, hold that, at common law, an offer to dedicate, without acceptance thereof by the public authorities, imposes no burden, and confers no rights, upon the municipality. Such acceptance can be manifested in various ways. A formal official act, such as a resolution or ordinance duly passed; the taking of possession of the street, etc., by the authorities, and grading and improving the same; the use thereof by the public as a highway for public travel and traffic, by pedestrians, teams, etc.; and the open and exclusive exercise of authority by the public officials over the street offered are some of the means adopted by municipalities to indicate acceptance of such offer. [3] There is a great diversity of opinion, in the courts of last resort, as to the right of a fee owner in a common-law dedication to revoke his offer to dedicate, even before the public has perfected such offer by acceptance. Abundance of authority may be found, affirming and denying such right; but the conclusions reached by us find support in the decisions of our own Supreme Court. Therefore we will not further refer to other authorities. One of the first Colorado cases upon the subject is City of Denver v. Clements, 3 Colo. 472, in which, among other things, it was decided that a common-law dedication of land to public use may be made in præsenti, to be accepted by the public in futuro, and that the filing of a plat of property as an addition to a city, and the constant sale of lots for a period of five years with reference to said plat, under the circumstances of that case constituted a dedication of the streets to public use which could not be withdrawn by the owner. The case cited, if taken alone, as a In Trine v. City of Pueblo, supra, certain controlling precedent, might seem to require acts had been performed by the owner of the reversal of the judgment herein; but nu- land which it was claimed manifested an merous later decisions of the Supreme Court intent to make an irrevocable dedication to have been rendered, in which different phases the public of the land in controversy as a of the questions involved have been consid- street; but, after said acts, the land claimed ered, and which, while adhering to the rule to have been dedicated had been conveyed announced in the Clements Case that by the by the owner before any act of acceptance filing of a plat of urban property and the sale by the city. The court, after citing with of lots with reference thereto the owner approval the opinion of Justice Elliott in makes an offer of dedication to the public City of Denver v. D. & S. F. R. Co., supra, of the public places designated on said map said:

"The facts in this case are in many particulars similar to those in the case of City of Dena plat had been prepared and made a public ver v. Clements, supra. In that case, as in this, record. Upon these plats certain parts are designated as streets and certain other portions as alleys; these streets and alleys being a continuation of certain public streets and alleys of the city of Denver. After the filing of such plat, many lots were sold with reference thereto, and we hold in this case, in accordance with the opinion of the court in the Clements Case, part of the owner, which offer he may not withdraw at his pleasure. This does not, however, do away with the necessity for acceptance, and its right to accept. the city may under certain circumstances lose * It is also shown that in the center of one of these streets there is a dwelling house, erected in 1871, which has since that date been occupied as a place of residence without objection from any source. These uncontroverted facts, in view of the peculiar location of the property,. * * surrender of connecting streets for railroad, and cient to show that the city did not intend to other purposes, we think are prima facie suffiaccept the property as a part of the public streets of the city of Denver."

that these acts show an offer to dedicate on the

*

the