Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-23
COURT DECISIONS.
DIeESTED BY W. B. MARTIN
EXCLUSIVELY FOR
vlRcINIAN-PILoT.
Notes of Cases Recently Decided
Which Are of interest to
Our People.
HUTTON ". WEBB.
Supreme Court of North Carolina
June IA, 1900.


June IA. 1900
a STATE CANNOT IMPOSE A TOLL,
UPON PERSONS USING A FLOAT
ABLE STREAM FOR FLOATING
LOGS. WHICH TOLL. is USED FOR
A PRIVATE BENEFIT.
The court says:
AS the purpose of special tax or
Toll is the only justification for its i'm
posltlon, 1t cannot lawfully be impos-
cd where such diversion is permitted.
We presume that a CITY can imnose
general taxes for the Improvement OF
its streets, even If the bulk of IL is
spent In some one locality. 1t seems
equally true that 1t can levy special
assessments In different localities for
the purpose of making special i'm
provements within those localities.
rms Is permitted upon the principle
mat where money is spent for the
peneht of those who paid il, they are
not injured, as the nature of the i'm
pro.einent is supposed TO be worth its
cost But can a city levy special taxes
In one particular section 10 be spent
IN an entirely different section? Or
can 1t impose n special assessment
upon one piece of property for the ex-
elusive benefit of another? Surely not.
ana yet this has been done in the case
at bar. A heavy assessment has been
levied on these logs without any cor
responding benefit to them or their
owner No Improvement has been
made in the floatability Of the stream
OF which they have had any advan-
tage. At best. the money which they
paid would be devoted to the future
Improvement of the stream, even If
none were used In building bridges or
cleaning out private fords. Their
owner may not have any more logs to
iloat down. and, If he did, he would
probably be called on to pay toll for
the floatage. This right of noatagc is
already possessed, as we have held this
to be floatable stream. 1t did not
come to him by grant from the State,
nor was 1t created by the decision of
this court All that tlfis court did or
could do was to declare it's existence
as a natural easement,-the right in
herent in the general public to use a
natural highway. 1t was said that
this right belonged to the riparian
owner. but it was not said that he was
It's exclusive owner. If It exists. it GER
tainly belongs to him in some capa-
CITY and to some extent. II 1t is a
local highway, he is entitled to its use
by virtue of his riparian ownership;
and. If 1T is n public highway in it's
broadcast sense, he is equally entitled
thereto as one. of the general public
This right cannot be taken from him
without Just compensation in some
form or other, and this is the essence
of our decision
We do not deny the right OF the
state to improve floatable streams, in
ciudlnE the one in question, and to reg
ulate their use. even If 1t interferes
with the natural easement hitherto en-
1oyed by the public. When, however,
one is deprived of his vested easement,
winch Is the result, pro tanto. If he
Is made to pay for it's use he must
be given some compensation in money
or in kind This compensation must
DC actual and present, and not merely
speculative and prospective. Where the
easement Is in the nature ora toll,
the benefit must be contemporaneous
and reasonably co-extensive with the
payment. When we say that the State
can do this, we mean 1t can do so di-
rectly, or by means of such agencies
as II may deem best suited to accom-
plish It's public purposes The act un-
der consideration does not affect 1.-The
principle that the right of noatage in
the public is superior to any right of
riparian proprietors." but attempts to
deprive both the public and the rip
arian owners of their free right of
iioatage without compensation to
either. Nor do we deny "the power of
the legislature to provide for leyying
tolls or assessments for keeping in or
der public highways used for float
age" Keeping in order" implies that
the highway has previously been nut
in order: that is. that substantial i'm
provements have already been made.
from which the-user- -derixed-a
substantial benefit. In such cases. the
toll is regarded as the equivalent of
the benefit already received. Our opin-
ion not only recognizes the right of
foatage as existing in the public, but
protects that right against the en-
croachment of the State. At the same
time. we admit the right of the State.
directly or through proper agencies, to
improve the stream whenever it sees
fit to do so. and to charge q just equiv
alent for the benefit enjoyed as the re-
suit of such Improvement. Upon the
facts of the case as presented to us.
and the legal principles above set
forth. we think the judgment should
be affirmed. The petition to rehear is
therefore dismissed.
NorfoikIan Said to Have Boon