[5] The court said to the jury:

"You are also to include in your verdict such sum as you think the plaintiff is entitled to for not to exceed 6 the delay in payment per cent. simple interest."

The defendant objects that this was a positive direction to do something which rests entirely in the discretion of the jury. The exception taken was as follows:

"We wish to save the question as to interest being recoverable in a case of this natureexcept to what the court charged regarding interest."

tered the car at Wells River; and we have, uncertainties existing here will doubtless be seen that his testimony regarding the suit removed on another trial. case was evidence tending to show that it was put in the rack before he took his seat. There was also evidence that the conductor passed through the car five times, and the trainmen twice before the suit case fell. This was enough to afford a basis for the claim that the defendant's servants ought, in the exercise of due diligence, to have seen and removed the suit case. It could not be said as matter of law that in taking his seat under the rack without observing the suit case, the plaintiff assumed the risk or was guilty of contributory negligence. Nor can the motion be sustained on the ground that there was no evidence tending to show a negligent running of the train. The first four counts charge negligence in the speed of the train only in connection with negligence in leaving the suit case in the rack. The fifth count makes the negligent running of the train the sole ground of recovery, but the case was not submitted to the jury on this ground.

that this recovery was by way of damages, The court thereupon proceeded to explain and was not strictly interest; evidently considering, as well it might, that that was the point of the exception.

The defendant excepted to certain expressions used by the court in instructing the jury as to its duty regarding the suit case,

but we do not deem it best to formulate the
exact rule of liability in this respect upon a
consideration of these exceptions.
Judgment reversed and cause remanded.

TY CO. et al.

(89 Vt. 80)

(Supreme Court of Vermont. May 15, 1915.) 1. NAVIGABLE WATERS 39-INJURY TO RIPARIAN OWNER-BILL-CONSTRUCTION.

In the opening part of its charge the court said that the defendant was required "to use the highest degree of care respecting its roadbed, machinery, and appliances, and in running and operating its train," and that BOUTWELL et al. v. CHAMPLAIN REALas regards its passengers it was bound "to use the utmost care and caution which may be reasonably expected of a careful and prudent man in like circumstances." In its specific instructions subsequently given regardThe language used in equity pleadings is ing the rack and its use, the court spoke to be given its ordinary meaning, and to be conseveral times of the duty of the defendant to strued when ambiguous against the pleader and use the care and prudence of a prudent man hence a bill averring that plaintiffs' land was bounded on the west by lands of named perin the circumstances. In a supplemental sons, that a river flowed along the westerly porcharge the court said it was the defend- tion of plaintiffs' land, and that portions of ant's duty to transport the plaintiff safe- plaintiff's land were damaged by logs floating in ly, using the care and prudence before indi-owned any of the bed of the stream. the river, is insufficient to show that plaintiffs cated in the charge; and that as regards the rack and suit case the defendant was bound to use the care and prudence of a prudent man in like circumstances, in view of all the conditions previously stated. The speed of the train was one of the circumstances to be considered in determining what prudence required as regards the suit case; but, as the case was submitted, it made no difference whether the speed shown was negligent or otherwise. The plaintiff claims that when the charge is considered as a whole, the preliminary statement of rules calling for a degree of care more than ordinary shows no error; but as the case stands it is not necessary to consider this matter.

The charge permitted a recovery of the amount of the doctor's bill. There was no statement of any amount, nor of the charge for a visit, and but a very indefinite statement of the number of visits. It did not appear that the plaintiff had paid any bill, or that the doctor had made any charge. It is not necessary to determine just what is essential as the basis of a recovery, for the

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 21, 53, 82, 103, 112, 117, 127, 239-244; Dec. Dig. 39.] 2. EVIDENCE 10-JUDICIAL NOTICE-RIV

ERS.

Connecticut river is a public highway used for
The court will take judicial notice that the
transporting property in boats and floating logs.
[Ed. Note.-For other cases, see Evidence,
Cent. Dig. §§ 9-14; Dec. Dig. 10.]
3. EVIDENCE 10-JUDICIAL NOTICE-"BOAT-
ABLE STREAM."

that the White river is one of the large rivers
While the court will take judicial notice
of the state and is nontidal, the question wheth-
er it is a "boatable stream" (that is, one of
common passage as a highway) is one of fact.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 9-14; Dec. Dig. 10.] 4. NAVIGABLE WATERS 39-WHAT CONSTI

TUTE.

Waters above the flow of the tide are prima facie private in use as well as ownership, and the burden of showing that a particular stream is boatable is on a person seeking to use it as such.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 21, 53, 82, 103, 112, 117, 127, 239-244; Dec. Dig. 39.]

Where a statute may be in violation of constitutional rights according to circumstances, the existence of circumstances necessary to support it will be presumed; hence it will be presumed in favor of Laws 1890, No. 179, empowering a paper company to float logs and tim-lowing facts: bers in a stream, that the stream was in fact navigable, for otherwise the act would be unconstitutional.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. 48.]

8. NAVIGABLE WATERS

LOGS-NEGLIGENCE.

Previous to the year 1897, the said lands of the plaintiffs had been damaged by the Fall Mountain Paper Company by floating logs on the river in such a careless and negligent manner that the lands were thereby cut into by the logs and the water, and portions of the same were washed out while the logs were being floated, whereupon the company caused an embankment to be constructed along the bank of the stream adjacent to said lands, and, so long as this embankment remained in good condition and repair, it afforded some protection to those lands against damage caused by floating logs. Subsequent to the year mentioned, that company disposed of certain of its lands on this river to the International Paper Company, a corporation, assigning and transferring to it all such rights and privileges on the river as the firstnamed company had, whereupon that company ceased cutting timber on those lands or floating logs on the river.

tity of flood wood and débris was washed off said lands farther up the stream and carried down the river and deposited on the plaintiffs' land, and much sand and gravel was also washed onto it. During the same time, a large quantity of said logs were thrown by the water against the said embankment, which was thereby broken and torn out, and the earth about it was washed away, and many large holes, depressions, and openings were made and formed in the plaintiffs' land. The company, by its agents and servants, then entered upon the plaintiffs' land and removed therefrom the logs thus deposited thereon, and in so doing dug up the soil and thereby greatly injured the land, whereby, and solely by reason of the depositing of said logs, flood wood, débris, sand, and gravel thereon, the lands of the plaintiffs were greatly injured in value, and for purposes of cultivation; and the making of holes, depressions, and openings, and the digging up of the soil as above stated, greatly injured said lands, and a large portion of them was thereby rendered wholly useless and unfit for cultivation and the raising of crops, hitherto continuing.

Upon thus acquiring these properties and rights, the International Paper Company proceeded to exercise the right of floating logs on White river, claiming to have acquired such right from the Fall Mountain Paper Company, and for several years thereafter This company floated logs down the river floated logs from points above the plaintiffs' from above plaintiffs' land in the spring and lands, and so continued until the incorpora- summer of 1913 in such a careless and negtion of the defendant Champlain Realty Com-ligent manner that a large number of logs pany as a subsidiary company. Thereupon were thrown against such portions of said certain of the properties which were of the embankment as then remained in position, Fall Mountain Paper Company, and such rights and privileges in and on White river as that company possessed previous to its disposition thereof to the International Paper Company, were transferred and assigned to the Champlain Realty Company; the latter then and there entering into possession of the properties. This company floated logs and exercised all such rights and privileges in and on the river as had been acquired by it, claiming as the successor of the Fall Mountain Paper Company, and thus continuing down to and including the year 1913. During all the same time, the Champlain Realty Company has claimed and now claims the right to charge tolls and collect the same of all persons and corporations floating logs on any part of White river.

The embankment erected by the Fall Mountain Paper Company was kept in good condition and repair by each of the companies mentioned while engaged in floating logs on the river, and during all that time afforded some protection to the plaintiffs' lands, from injury occasioned by the floating of logs, until the year 1912. During the spring and summer of that year, and while the Champlain Realty Company was engaged in floating logs, large jams of logs were by it carelessly and negligently suffered and permitted to form on the river below the plaintiffs' lands, causing the water to dam up, set back, and overflow large tracts of land above the plaintiffs' land; and a large num

which were thereby torn out and washed away. The damages resulting therefrom to the plaintiffs were similar to those above shown in the preceding year. The company has neglected and refused, and still neglects and refuses, to fill up the holes, depressions, and openings made in the plaintiffs' land in the two years mentioned, and neglected and refused, and still neglects and refuses, to reconstruct said embankment in whole or in part, but has suffered and permitted said lands to remain in the damaged condition, and neglects and refuses to pay the plaintiffs any sum as damages for the injuries thereto.

Until an embankment, sufficient fully to protect the plaintiffs' lands from injuries caused by floating logs, is erected along the bank of the river, and maintained in good and sufficient repair, logs cannot be floated on the river from points above their lands without doing damage to said lands by tearing out large portions of the soil and causing large quantities of flood wood, débris, sand, and gravel to be deposited thereon, which it is averred will work irreparable damage thereto. It is further averred that, if the plaintiffs are obliged to build and maintain such an embankment there for that purpose, they will be put to great and disproportionate expense; that, whenever their lands are covered with flood wood, débris, sand, and gravel, they are put to great and disproportionate expense in clearing the same of such substances, of which the American Realty

pleader; and that no intendments are to be made in favor of the pleader's case which do not naturally result from the facts alleged. Applying this rule of construction to the language of the bill, it cannot be said that any part of the bed of the river is owned by the plaintiffs. As the case stands on the bill, therefore, no part of the bed of White river is owned by the plaintiffs, but the river runs southerly along the westerly side of their land, but not over it.

recover damages for past injuries to their the west by the river, or that their west line said lands, and for future injuries thereto, or boundary is along the river. There is no or either of them, the plaintiffs will be com- allegation as to where the east line of Kezer pelled to resort to a multiplicity of suits at and Emerson's land is, with respect to the law, unless a court of equity takes cogni- river. It was held in Quinn v. Valiquette, zance of the matters and things set forth in 80 Vt. 434, 68 Atl. 515, 14 L. R. A. (N. S.) the bill; that it was the lawful duty of the 962, that the language used in equity pleadseveral companies mentioned, during all the ings is to be understood according to its time they respectively floated logs on the riv-natural import in the connection, and with er, and is now the duty of the defendant | reference to the subject-matter; that in equicompanies, to employ sufficient means to pre- poise the construction is to be against the vent injury to the plaintiffs' lands, and fully to protect them therefrom; that the Champlain Realty Company is the sole owner of said properties and rights by it acquired from the International Paper Company, and the American Realty Company is engaged in cutting timber and floating logs down the river in question for said Champlain Realty Company, which latter company will continue in such business and floating logs for years to come, unless restrained from so doing; and that the plaintiffs have no adequate remedy at law in the premises. The prayer is that the Champlain Realty Company be decreed to pay to the plaintiffs such damages as they have suffered in the premises or may suffer during the pendency of this bill; that it be ordered and directed to construct along said river, adjacent to the plaintiffs' said lands, within a time limited, an embankment sufficient fully to protect said lands from injuries occasioned by floating logs on the river, or employ such other adequate means as are requisite and adequate for that purpose; that the Champlain

Realty Company and the American Realty Company be enjoined and prohibited from further floating logs on the river from points above the lands of the plaintiffs, until said lands are protected from injury by such an embankment or other means employed for that purpose; and for general relief.

[2] One of the chief geographical features of the state is that its eastern border is washed by the Connecticut river; and it is a matter of historical knowledge that the Connecticut has always been a public highway upon which, in early times, a portion of the merchandise and productions of the eastern part of the state, including lumber, it is of common knowledge that in more rewere transported in boats or otherwise; and cent times it has been used as a great public highway for the floating of logs to places

further south in this state and to places in the state of Massachusetts. These facts, therefore, are judicially noticed. Stephen's Dig. Ev. (Chase's Ed.) 170-172.

[3] This court will also take judicial notice that White river is one of the larger rivers of the state, is nontidal, and empties into the Connecticut at Hartford, this state; In substance, two causes of demurrer are but whether it is a boatable stream in its assigned: The want of equity to sustain the natural state, and therefore a public highjurisdiction of a court of equity; the plain-way, especially as far up as the plaintiff's tiffs have a good and sufficient remedy at

law.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAY. LOR, JJ.

Wallace Batchelder, of Bethel, for orators. John C. Sherburne, of Randolph, for defend

ants.

WATSON, J. [1] It will be noticed by the statement of the facts in the bill that the plaintiffs' land is bounded on the west by lands of Kezer and Emerson; that "White river flows in a southerly direction along the westerly portion" of the plaintiffs' land; and that the portion of their farm alleged to have been damaged by the floating of logs on the river is "adjacent to said river." The import of the allegations in these respects may or may not be the same, in legal effect, as

farm, is a question of fact not alleged in the bill, and of which judicial notice is not here taken. New England Trout & Salmon Club v. Nather, 68 Vt. 338, 35 Atl. 323, 33 L. R. A. 569. It was held in that case that boatable waters, within the meaning of the Constitution, are waters that are of "common passage," as highways; that the capability of use by the public for the purposes of transportation and commerce, rather than the extent or manner of such use, affords the criterion by which the navigability of a river is to be determined; and that if it be capable in its natural state of being used for purposes of commerce, carried on in any mode, it is navigable in fact, and therefore is, in our law, a public river or highway. In support thereof, the case of Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641, is noticed as a leading case on the subject, wherein the true test to be applied in such cases was

and in its nature capable of being used for | sons sustaining the damages may prefer a the purposes of commerce, for the floating of vessels, boats, rafts, or logs; and that, when a stream possesses such a character, the easement exists, leaving to the owners of the bed all other modes of use not inconsistent therewith.

[4-7] While the general rule is, as stated in the New England Trout & Salmon Club | Case, that waters above the flow of the tide are prima facie private in use as well as in ownership, and the burden of showing that a particular stream is boatable, is on the person seeking to use it as such (unless it be a case where the court will take judicial notice of that fact), yet in the case at bar the bill alleges that in the year 1890 the General Assembly of the state of Vermont granted certain privileges on the river in question to the Fall Mountain Paper Company; that thenceforth to the time of the commencement of this suit that company and its successors floated logs on the river, claiming the right so to do under and by virtue of said enactment, which enactment is averred to be a public law. Counsel on both sides have treated this statute as public in character, in the discussion of the case, and consequently we treat it in the same way without considering whether it is so, and without regard to the real force of that particular averment. By section 1 of the act mentioned (Laws of 1890, No. 179), the Fall Mountain Paper Company was

"empowered to remove rocks, flood wood and other obstructions from the bed and banks of White river and its tributaries, excepting the first, second, and third branches of said river, build piers for the purpose of attaching booms thereto and shall build proper sluices or aprons on dams to protect the same from damage, so as to facilitate the running of logs, ties, wood, timber or other lumber * * down said streams, and any other person or persons may use said streams for the purpose of floating logs, ties, wood, timber or other lumber upon the terms hereinafter named. And said Fall Mountain Paper Company and its successors are empowered to enter upon the bed of said White river and its tributaries, except the three tributaries last named, for the above purposes, subject to the liability of paying, or tendering, all damages caused thereby in the manner hereinafter provided."

By section 2, injuries or damages occasioned by the Fall Mountain Paper Company, or its successors, to land or property by reason of said improvements, shall be paid by the company or its successors to the person or persons sustaining the damages; and, if the parties cannot agree upon the amount of damages to be paid, said corporation shall prefer a petition to the judge of the probate court in the district in which the property is situated, who shall appoint three commissioners to hear and determine the matter; and if any damages shall accrue to a riparian owner by using the river or its tributaries, for the purpose of running logs, ties, etc., and the parties cannot agree upon the amount of such damages, the person or per

petition to the judge of the probate court for the appointment of commissioners to determine that question, and their decision in the matter shall be final and conclusive upon all parties.

By section 3, the Fall Mountain Paper Company and its successors are given the right to receive toll from all persons running logs, ties, etc., over the portion of the streams on which money has been expended by them.

In Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58, it was said that if, prior to legisla tive enactment, the stream was private in use as in property, the Legislature could not take away the rights of those who were then riparian owners, nor subject such rights to a public use, created or authorized by the act itself, without compensation. In Foster v. Stafford National Bank, 57 Vt. 128, a statute, authorizing and empowering the persons named "to make, maintain, and control gates at the outlet of Willoughby Lake for the purpose of saving the water in said lake," but not to raise it "above the ordinary high-water mark of the last fifteen years," was held to be unconstitutional upon the ground that no provision was made for the ascertainment and payment of the damages that might be occasioned by the entry upon and the occupation of the land of the defendant for the erection and maintenance of gates thereon and the raising of the water in the lake. The court said that the Constitution limits the right to take private property to cases where necessity requires it for a public use; and then it can be taken only on making just compensation to the owner. In the New England Trout & Salmon Club Case the court said that, unless the waters in question were boatable, they were not public, but private, and the state had no jurisdiction over them. And it was there held that the statute then under consideration, in so far as it undertook to authorize the crossing of private lands to reach public waters, was unconstitutional, as authorizing the tak ing of private property for private use; that the right of eminent domain can never be exercised for a merely private purpose, however much the public utility may be subserved thereby. See, also, Adams v. Barney, 25 Vt. 225.

But the statute of 1890 does not undertake to delegate the power of eminent domain, nor does it contain provisions touching elements essential to the exercise of that power. The rights granted involve neither the question of necessity for public use, nor compensation to riparian owners for private property taken for public use in the establishment of a public easement in the stream to which the act relates. Foster v. Stafford National Bank, noticed above.

It has been held that the Legislature cannot make a stream navigable by declaring it to be so if in fact it is not. Olive v. State,