courts allow it, where will it end?

How often and where

will it be exercised? It may be rather asked, When and where will it not be exercised? It would prove a Pandora's box, the evils and ultimate effects of which cannot be readily foreseen. Through the exercise of such a power in the courts by injunction, that which is most sacred in free gov ernment the will of the voters-may be indefinitely delayed in its expression, or practically defeated. These matters are in their nature political, and their decision rests with the political power of the government, and the processes which it has designated for the purpose, not with the judiciary; and the courts should be on their guard lest they overstep the legitimate boundary of their jurisdiction.

This court has, under the clause of the constitution giving circuit courts power to supervise and control all proceedings before justices and other inferior tribunals by mandamus, prohibition, and certiorari, sustained a jurisdiction by those processes, and in so doing has gone as far as there is warrant, and does not desire to extend the scope of the process of injunction into this field. There is no provision in the constitution expressly authorizing it as to injunction.

But it is argued that this case is an exception to the general rule, and that the injunction in this instance is only auxiliary or ancillary to the proceeding at law by certiorari; that but for it the commissioners could and would certify the returns to the governor before the plaintiff could obtain that writ and give bond to consummate it, and thus render the certiorari abortive. I do not see that the mere fact that a party has taken exceptions in a law proceeding with intention to appeal to a higher court will warrant an injunction to restrain the judgment. Here the exception was not yet settled or signed; no certiorari was pending. Perhaps the intention to obtain it might not be carried out, or the writ might not be obtained. But the position that there was no other remedy does not seem sound. If, upon the certiorari, when obtained, the action of the commissioners should be reversed, the judgment might be such as to need no further proceedings before them; or if such further proceedings should be necessary, they could be required to review their work and properly certify the result of the election, as this court has at this term decided in Alderson v. Commissioners, 32 W. Va. 454; and beyond this the law affords ample and adequate remedy in the process of a contested election.

Equity disavows jurisdiction by the stringent process of injunction where other adequate remedy exists: High on Injunctions, sec. 28. Equity especially disavows a jurisdiction in matters pertaining to elections. We fail to see in the circumstances of this case that stress of necessity which would make this case an exception to a general rule, which the able and distinguished counsel for the plaintiff frankly admits to exist.

If it be argued that the contemplated hasty action by the commissioners was with fraudulent intent to defeat the purpose of the certiorari, the answer is, first, that the law does not impute fraud to public functionaries in the exercise of their lawful jurisdiction: Bridge Co. v. Town of Point Pleasant, 32 W. Va. 328; and further, that we do not see how fraud could be imputed to them in doing an act which the law made it their duty to do.

As to the error alleged in discharging the rule for contempt, does this appeal bring up the judgment in this proceeding to this court for review? The proceeding for a contempt is a criminal proceeding in its nature, separate and distinct, upon the return of the rule or appearance thereto by the defendant, from the cause, in a violation of orders in which the contempt consists: Baltimore etc. R. R. Co. v. Wheeling, 13 Gratt. 40; State v. Irwin, 30 W. Va. 404; State v. Harper's Ferry Bridge Co., 16 W. Va. 864. It is to be then entitled in the name of the state at the relation of the party complaining against the offender. It was so entitled in this case. It must be entered in the law order-book, though the contempt was in disobedience of process or orders in chancery, and it is error to fail to enter it in the law order-book: Ruhl v. Ruhl, 24 W. Va. 279. It does not appear in what book the order of discharge was entered in this instance. The petition in this case asked an appeal from and supersedeas to the two orders in it specified, made the 9th of January, 1889, one being the order discharging the rule, the other dissolving the injunction and dismissing the bill.

What are we to call this proceeding, or what are we to consider it? It cannot be both an appeal and writ of error. I think it is what the record calls it, an appeal in said chancery cause, and that, so far as it applies to the order dischar ging the rule for contempt, it was improvidently allowed, and that it does not bring up for review the order discharging pid rule, because that is separate and distinct from the

chancery proceeding, criminal in its nature, and cannot be brought here by appeal, but only by writ of error. As that order is not therefore reviewable or cognizable in this appeal, we do not consider any question involved in it, whether the said Alderson has such relation to it as to warrant proceedings in his individual name for its review, or whether any contempt was committed.

The decree of the circuit court dissolving the injunction and dismissing the bill is affirmed, with costs and thirty dollars damages to appellees.

INJUNCTION TO RESTRAIN OFFICERS FROM DISCHARGE OF OFFICIAL DUTT! See note to Fleming v. Guthrie, 32 W. Va. 1; ante, p. 792.

GASTON V. MACE.

[33 WEST VIRGINIA, 14.]

WATERCOURSES. -NAVIGABLE STREAMS IN THE UNITED STATES ARE OF THREE CLASSES: 1. Tidal streams, that are held navigable in law, whether navigable or not; 2. Those that, although non-tidal, are yet navigable in fact for boats or lighters, and susceptible of valuable use for commercial purposes; 3. Those streams which, though not navigable for boats or lighters, are floatable, or capable of valuable use in bearing logs or the products of mines, forests, and tillage of the country they traverse to mills and markets. WATERCOURSES. —THE NAVIGABILITY OF FRESH-WATER NON-TIDAL STREAMS is a question of fact, and the burden of proof must be assumed by him who claims them to be navigable, and he must show that they are in fact navigable for boats or lighters, and susceptible of valuable use for commercial purposes in a natural state, unaided by artificial means & devices, for such length of time during the year as will make them valuable to the public as public highways, though he need not show that they are thus valuable during the entire year. WATERCOURSES-FLOATABLE STREAMS, RESPECTIVE RIGHTS OF THE LANDOWNER AND OF THE PUBLIC IN. While the owner of land through which a floatable stream runs owns the bed as well as the banks thereof, he has no property in the water itself, aside from that which is neces sary for the gratification of his natural and ordinary wants, and of hav ing it flow without disturbance or material diminution by any other proprietor. His use of the stream and its waters must be reasonable, and not inconsistent with the reasonable enjoyment of others who have an equal right to its use. The public has the right to use it as a public highway to float lumber and other products to mill and market, and the land-owner has no right to unreasonably incommode and hinder the public use. WATERCOURSES - FLOATABLE STREAMS, RIGHT TO MAINTAIN MILLS AND DAMS THEREIN. A land-owner has a right to build a mill, and erect a dam across a stream to accumulate water to run the mill; but the main

taining of such a dam cannot give him any prescriptive right to prevent the use of the stream as a public highway. WATERCOURSES-FLOATABLE STREAMS. THE MAINTENANCE OF A DAM

ACROSS a floatable stream, so as to prejudice the right of the public to float logs therein, and without providing suitable sluices to allow the logs to pass around the dam, is, a public nuisance.

WATERCOURSES - FLOATABLE STREAMS. FOR THE DESTRUCTION OF A DAM MAINTAINED ACROSS a floatable stream, by logs placed therein, there can be no recovery, because the land-owner has no right to maintain his dam in such a manner as to interfere with the right of the public to float logs and other products down the stream. PRESCRIPTION. -LAPSE OF TIME DURING WHICH A DAM HAS BEEN MAINTAINED ACROSS A FLOATABLE STREAM by a riparian proprietor cannot give him any prescriptive right to maintain it as against and to the prejudice of the public, though it might give the right to keep up such dam as against another riparian owner.

ACTION on the case to recover for the destruction of plaintiff's dam across Stone Coal Creek, by large quantities of saw-logs and other matter which were floated against it, and which, by their weight and the force of the stream, caused the dam to give way. There was evidence tending to prove that the dam had been maintained ever since 1818; that the creek, in its natural condition, was not of sufficient capacity to float vessels, but that saw-logs could be floated in it upon the occurrence of floods caused by rains or by melting snows; that it was not used until 1880, except for the purpose of floating logs down as far as the plaintiff's mill, to be there made into lumber; that the injury of which plaintiff complained, if it happened at all, had resulted from logs being placed in the stream, to be floated down it, and which accumulated against plaintiff's dam because there was no opening through or around it. The plaintiff asked for the following instructions, which, on the objection of the defendants, were refused: "If the jury find that the plaintiff's dam was at the same place, and of like character in dimensions and height, for a period of twenty years or more, and had been so used for a period of twenty years or more, and further find that Stone Coal Creek, in which said dam existed, was floatable for saw-logs, and not for other purposes of navigation, still the plaintiff has a prescriptive right to have such dam, and so hold and use the same, notwithstanding said stream is floatable for saw-logs, and not for other purposes of navigation." And the defendants objected to the same, and thereupon the court sustained said objection, and refused to give said instructions to the jury, to which action of the court in sustain

AM. ST. REP., VOL. XXV. -54

ing said objections, and in refusing to give said instructions to the jury, the plaintiff excepts, and tenders this, his bill of exception, which is signed by the court, and ordered to be made a part of the record hereof. The court, on request of the defendants, and against the objection and exception of the plaintiff, gave the jury instructions Nos. 4 and 5, as follows: No. 4. "If the jury believe that Stone Coal Creek is, and has always been, by reason of its natural capacity, navigable for floating lumber, logs, and other commercial goods, the right of the public to use the same for such purpose cannot be lost or forfeited by reason of non-user of it, or maintaining an obstruction thereto, for any length of time; and under such circumstances, the plaintiff could not acquire a right to maintain a dam or other obstruction to the public use of said stream." No. 5. "In determining the question of the navigability of Stone Coal Creek, it is the valuable, more than the continued, capacity that is to be considered. The real question is, Can it be made a valuable and beneficial aid to the public in getting the products of the country to market?” The jury returned a verdict for the defendants. The plaintiff then moved to set aside such verdict, and for a new trial, because of the alleged error of the court in refusing the instruction asked for by him, and giving the instructions Nos. 4 and 5 for the defendants, and the motion was overruled.

J. Brannon, for the plaintiff in error.

C. Boggess and L. Bennett, for the defendant in error.

GREEN, J. This was an action of trespass on the case, brought by the plaintiff, the owner of a mill and mill-dam on Stone Coal Creek, in Lewis County. The claim of the plaintiff was, that the defendants placed in this creek above said mill a number of saw-logs, which were floated down the stream upon which was his dam, so that by the pressure and weight thereof the dam was destroyed, and he was deprived of the use of the water in said creek for operating his mill, to his damage. The action is based on the plaintiff's claim of an exclusive right to use the water of this creek within his close as though it were a private stream. The jury and the court below rendered a verdict and judgment for the defendants, evidently basing their action on an ignoring of the plaintiff's claims, and on an assumption that the creek was a navigable stream of this state, which the public, and defendants as a portion of the general public, had a right to use as