Opinion of the Court-Ailshie, J. away the banks of the St. Maries river and its tributary, Santa creek, which flow through these lands, and in removing the timber and brush and other growth from along the banks of the stream which protected the banks from being washed down by the flowing waters, and in making certain changes in the stream and straightening and widening the stream, and also for damages caused by reason of the defendant erecting certain splash-dams on Santa creek above the premises of the plaintiff, collecting the waters and then turning them loose in large volume for the floating of logs, and thus causing large deposits of sand to be left on the meadows of the plaintiff and large quantities of bark and logs and timber to be deposited over the plaintiff's land. It appears that prior to entering upon this work the defendant procured from the state board of land commissioners a permit and license under act of February 28, 1899 (Sess. Laws 1899, p. 332), to clear, deepen and straighten the channels of these two streams and to receive and collect tolls and also to construct splash-dams and to keep the streams open for the floating of rafts, timber, logs, lumber, piling, ties, etc. Acting under this license, it is claimed by the appellant that it entered upon these streams about March, 1903, and proceeded to clean out and deepen and straighten and improve the channels of the streams so that it might float logs down the streams for commercial purposes. It appears that there was a large body of commercial timber contiguous to these streams above the lands of the respondent amounting to upward of two billion feet. It also appears that the company set men to work on these streams and caused them to cut and blast out trees and shrubbery growing along the banks of the stream, and to also blast out rock, and erect breakwaters and piers at certain places for the purpose of confining the stream to a narrower channel, and at other places changed the stream entirely so as to straighten it; and that they also erected a couple of large dams, commonly called splash-dams, some miles above respondent's premises and on the waters of Santa and Charley creeks. At such time in the spring as the natural flow of the streams was not suffi Opinion of the Court-Ailshie, J. cient to furnish a good head of water for the floating of logs, the company would cause these splash-dams to be filled and then turn them loose, creating a large head or volume of water which would drive the logs with great force down the stream, and this often resulted in throwing many of the logs and a great deal of debris and timber on to respondent's meadow-lands and the low lands which he used for raising potatoes and vegetables; and this was kept up apparently at as frequent intervals each spring as the company could collect sufficient heads of water to float the logs till late in the spring, running at times into May and June. This, the respondent says, prevented his planting and taking care of his crops, and deprived him of his hay crop; and the plaintiff also testified that the constant driving of logs down the streams under heavy heads of water tended to beat down and wear away the banks of the streams, and that it completely washed away something like twenty-six acres of his meadow-land. As to some of these matters there is but little or no conflict in the evidence, while as to others there is a sharp conflict. For example, it is contended by the appellant and testified to by some of its witnesses that the damage and evil effects resulting from the improvement of the streams and the use of these splash-dams and the floating of logs down the stream were not materially greater after appellant entered upon the work and improved the streams than before, and that it had always happened in the springtime, when the waters were high, that the lands of the respondent and his assignors were flooded and overflowed and that more or less bark, logs and debris were deposited on his land. The respondent, on the other hand, testifies that there is a most material and substantial increase in the damage that he has sustained, both from overflow and the deposit of sand and logs and debris, and particularly from the washing away of his land by reason of the impairment of the banks of the streams flowing through his lands and flooding from the splash-dams. The appellant relies for reversal of the judgment on two principal propositions: First, that it entered upon and im Opinion of the Court-Ailshie, J. proved the stream under plans and specifications furnished by the state board of land commissioners, acting under the authority of the act of February 28, 1899, and that any damage which the respondent and his assignors may have suffered is merely consequential damage which would necessarily result to any riparian proprietor through whose land the stream thus improved might flow. Second, the appellant contends that the respondent and his assignors were present, and saw and knew of the changes and improvements being made in the stream and made no objections or protests thereto, and that they are therefore estopped from now complaining or collecting damages from the ordinary and consequential results of those changes and improvements. The respondent, on the other hand, contends that the act of the legislature under which appellants secured their license and franchise is unconstitutional, in that it authorizes the taking of private property without compensation, and, second, that the acts of the respondent do not constitute an estoppel. Turning our attention, first, to the act of the legislature under which appellant procured its franchise, the inquiry at once arises as to whether this act attempted to do more than to authorize the deepening and improvement of the bed of the stream, and if it was intended by the act to authorize an improvement company in any way to enter upon the lands of the riparian proprietor or to interfere with the banks of the stream and the growing timber. It is apparent at once that if the act attempts to authorize the company securing the franchise to enter upon the lands of riparian proprietors or to interfere with their littoral rights or to cut or remove timber, then the act would be unconstitutional and a plain violation of sec. 14, art. 1, of the state constitution, which forbids the taking of private property without first paying a just compensation therefor. (See Garth Lumber & Shingle Co. v. Johnson, 151 Mich. 205, 123 Am. St. 262, 115 N. W. 52; De Camp v. Thompson, 16 App. Div. 528, 44 N. Y. Supp. 1014; Smith v. Atkins, 110 Ky. 119, 96 Am. St. 424, 60 S. W. 930, 53 L. R. A. 790.) As we view this case, it is not necessary for us to determine whether or not the act of February Opinion of the Court-Ailshie, J. 28, 1899, under which appellant secured its franchise is constitutional. If it is not constitutional, then it can afford the appellant no protection in this case; if it is constitutional, then it does not authorize the appellant to commit the wrongs and injuries complained of in this case. In order to sustain the statute as above stated, it would be necessary to hold that it does not attempt to authorize the entry upon the lands of riparian proprietors or the commission of any trespass thereon or any injury thereto. We have no doubt of the right of the state to enter upon navigable streams, whether navigable for boats and light craft or only for the floating of logs and timber, and to deepen and improve the bed of the stream. The damages that might indirectly flow from a reasonable exercise of this right would have to be borne by the proprietors as damnum absque injuria. All navigable streams are highways, and the state has a right to improve the bed of the highway. To that extent, therefore, there can be no question of the power of the state to occupy and improve the stream. (Smith v. Atkins, 110 Ky. 119, 96 Am. St. 424, 60 S. W. 930, 52 L. R. A. 790; Monroe Mill. Co. v. Menzel, 35 Wash. 487, 102 Am. St. 905, 77 Pac. 813, 70 L. R. A. 272; Pickens v. Coal River Boom Co., 51 W. Va. 445, 90 Am. St. 819, 41 S. E. 400.) The fact that it was necessary to do the things complained of in order to utilize the timber above respondent's lands affords no excuse or justification in law for invading respondent's rights, committing trespass, and flooding his lands. In La Veine v. Stack-Gibbs Lumber Co., 17 Ida. 51, 134 Am. St. 253, 104 Pac. 666, this court had under consideration the act of a defendant in entering upon the lands of a riparian proprietor and building a dam for the purpose of impounding the waters and flooding the stream. In passing upon that question, the court, among other things, said: "The fact that it would be more convenient and cheaper for defendants to float their logs down this stream over plaintiff's premises than to remove them in any other way affords no reason whatever for their trespassing upon plaintiff's premises and building dams thereon and maintaining Opinion of the Court-Ailshie, J. guards to protect the same and flooding his premises. There can be no question but that they have a right to float their logs down the stream when it is navigable. (Powell v. Springston Lbr. Co., 12 Ida. 723, 88 Pac. 97; Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240.) But this right gives them no license to trespass upon plaintiff's lands and erect structures thereon and to go and come through and over his premises without let or hindrance. They should be required to respect the private rights of property just the same as anyone else, and the fact that they owned lumber about Lake Fernan or millions of feet of logs floating in the lake, furnishes no reason, pretext or excuse whatever for their turning trespassers and wrongdoers themselves and riding over the rights of others." Kamm v. Normand, 50 Or. 9, 126 Am. St. 698, 91 Pac. 448, 11 L. R. A., N. S., 290, is a case somewhat similar in facts and very much in point on the questions of law involved in the case under consideration. After considering what constitutes a public highway for floatage or a navigable stream for the floating of logs and lumber, Mr. Chief Justice Bean, speaking for the court, said: "But a stream which is not such a highway cannot be made one by the use of dams or other artificial means, without first acquiring the rights of riparian proprietors. (1 Farnham on Waters, sec. 139.) Nor can a stream, navigable in its natural condition at certain stages of the water, be made so at other times by artificial means, such as flooding and the like. No one has a right to store water, and then suddenly release the accumulation, and thus increase the natural volume of the stream, and overflow, injure or wash the adjoining banks, or otherwise interfere with the rights of riparian owners. The riparian proprietor is entitled to the enjoyment of the natural flow of the stream with no burden or hindrance imposed by artificial means. . . . . Dams, dikes, embankments and the like may be constructed in or along floatable streams to facilitate their use (Union Power Co. v. Lichty, 42 Or. 563, 71 Pac. 1044), but not to the extent of injuring the riparian proprietors by retarding the flow of .... |