Shaw v. Oswego Iron Company. application to the Tualatin river; yet to maintain his position that the bed of this river is the property of the State, and the riparian owners stop at its margin, the respondent must, at least, bring his case within the reason of these authorities, and the conclusions upon which they are founded. These are drawn, as before stated, from the inapplicability of this rule of the common law to large fresh waters rivers, and also from the fact that the government has granted the beds of such rivers to individuals. But the bed of the Tualatin river was not reserved; it was sectionized as land, and sold and patented by the government without any deduction or reservation whatever of the subjacent soil of the Tualatin. Nor do the reasons of the inapplicability of the common-law rule to the large rivers and inland seas apply to such streams as the Tualatin. It was the imperfect standard that rule furnished as a test of navigability when applied to the large fresh water rivers and inland seas, abounding on this continent, and navigable in fact, and "over which trade and travel are or may be conducted in the customary modes of trade and travel on water," to which these courts held that rule to be inapplicable, and declared that such rivers must be regarded as public, navigable rivers in law. Manifestly, the Tualatin does not come within the reason of the courts which excepted such rivers from the strict common-law principle, and limited riparian ownership to the margin of them. There can be no difficulty in adapting well established principles to fresh water streams of the character and capacity of the Tualatin. Such streams having at best but a limited capacity for floatage, occurring at regular seasons of high water, and at which times they may be useful to trade and the interests of the community, can be used as highways by the public for that purpose, leaving in the riparian owners all rights of property, not inconsistent with such use of the public. This principle is ably declared in Morgan v. King, 18 Barb. 288, in which the court say: "The capacity of a stream which generally appears by the nature, amount, importance and necessity of the business, that can be done upon it, must be the criterion. A brook, although it might carry down saw-logs for a few days, during a freshet, is not therefore a public highway. But a stream upon which, and its tributaries, saw-logs to an unlimited amount can be floated every spring, and for the period of from four to eight weeks, and for the distance of one hundred and fifty miles, and upon which unquestionably many thousands will be annually transported for many years to come, if it be legal to do so, has the VOL. XLV-20 Shaw v. Oswego Iron Company. character of a public stream for that purpose. The floating of logs is not mentioned by Lord Hale, and probably no river in Great Britain was in his day, or ever will be, put to that use. But here such use is common, necessary and profitable, especially while the country is new, and if it be considered a lawful mode of using the river, it is easy to adapt well settled principles of law to the case. That this mode is considered lawful, the right to use such streams for that purpose, leaving in the riparian owner his rights for every purpose not inconsistent with that public use, is well settled by authority and in this State. In In an early case in Maine, the doctrine was stated by PARVIS, J., that where a stream is naturally of sufficient size to float boats or mill logs, the public have a right to its free use for that purpose. Wordsworth v. Smith, 2 Fair. 278; Brown v. Chadbourne, 31 Me. 20. And the same rule has been adopted in Michigan and Wisconsin. Moore v. Sandborne, 2 Mich. 521; Thunder Bay, etc., v. Speechly, 31 id. 342; Whistler v. Wilkinson, 22 Wis. 572. Nor is it essential to the public easement that such capacity continue through the year; it is sufficient if its periods of high water, or navigable capacity, ordinarily continue a sufficient length of time to make it useful as a highway. Treat v. Lord, 42 Me. 558; Morgan v. Smith, 35 N. Y. 459; Deidrich v. N. W. R. Co., 42 Wis. 202. All these cases recognize the riparian ownership to the middle of the stream, subordinate to the public easement. Wise v. Smith, 3 Or. 446, this identical stream was recognized as subject to the public easement for rafting logs to market, and the reasoning of the Maine authorities was quoted and approved. To the same effect is Felger v. Robinson, 3 Or. 458, in which it is held that any stream in this State on the waters of which logs or timbers can be floated to market, that they are public highways for that purpose; that it is not necessary that they be navigable the whole year for that purpose to constitute them such. It is sufficient if they can be used for floating timber during the seasons of high water. There is not a suggestion that the bed of such streams is owned by the State; on the contrary, the doctrine of the law, as applied in these cases, and the authorities cited and approved, recognize the right of the riparian owner to the middle of the stream, subject only to the public servitude. It is perhaps proper to remark that the facts of this case, not coming within the exception to the common-law principle adopted by some of the courts of Shaw v. Oswego Iron Company. the Union, no opinion is intended to be expressed upon that point. As a consequence however of the law applicable to this case, the decree of the court below must be reversed and the defendant enjoined from diverting the waters of the Tualatin from its natural channel, and it is so ordered. Decree reversed. A clerk of a municipal board of education, employed on a fixed salary, who is allowed an indefinite leave of absence, on account of illness, is not subject to deduction from his salary, in the absence of any provision to that effect in the permission.* A CTION for salary. The opinion states the case. The defendant had judgment below. James M. Lyddy, for appellant. D. J. Dean, for respondent. MILLER, J. The plaintiff claims to recover for his salary as a clerk in the employment of the board of education, from the 1st of May, 1871, to the 26th of September, 1871, when the finance committee, by a resolution, directed that he be removed, and that his removal take effect from the 1st of May, previous. The plaintiff * Bee Steubenville v. Culp (38 Ohio. St. 18), 43 Am. Rep. 417, and note, 418. O'Leary v. Board of Education. was appointed to his position in 1869, and rendered services until November, 1870, when he made application, stating that he was about having an operation for cataract performed, and asking for leave of absence until his sight should be restored. Upon the letter asking for leave, and filed with the board of education, was an indorsement, signed with the initials of the chairman of the finance committee, to the effect that it was granted with inquiries to be made from time to time by the clerk of the board. It would thus seem that the board of education had cognizance of the application, and through its financial officer signified its assent to the same. The plaintiff had an operation performed, and reported at the office of the board in February, 1871, but being still unable to perform any duty, on account of his eyes, he was obliged to have another operation performed in the month of March. He again reported in May, 1871, and stated to the president of the board and one of the officers that he was advised to go to Ireland for the benefit of his health. He presented to them the doctor's certificate and they told him he could go. Upon the facts stated, there would seem to be no question but that the plaintiff acted under a belief that he had a leave of absence which authorized him to go to Europe on account of the difficulty under which he labored, and it would seem that the officers of the defendant, with whom he had communication on the subject, must have supposed that such was his intention. It is true the leave of absence was somewhat indefinite, no time being fixed by which it was limited to any particular period; but the leave of absence which was granted could have been withdrawn at any time by the defendant, or in the discretion of the board, brought to an end by a notice to plaintiff that his services. were no longer required, or a resolution discharging him from his position would have relieved the defendant from the effect of the permission granted to him and exonerated it from all liability. This was not done until September following, as already stated, when he was informed that his services were no longer required. That the defendant considered the plaintiff in its employment until he was thus discharged is indicated very clearly by its action in regard to the payment of his salary. The pay-rolls for the months of May and June show that the plaintiff's salary for these months was audited by the auditing committee of the board. The defendant thus recognized that the plaintiff was still in its employment and entitled to pay as one of its employees. This was an approval |