ant to be exercised at such a time and place, he lost control of his engine, probably because confused, and 879 went forward with great and ruinous force against the stop and over the precipice. Our conclusion is, after a careful review of the evidence, that it shows, without any conflict, that deceased was careless, almost to recklessness, and thereby brought the disaster on himself, in which he lost his life.

8. There is no proof to show any willful, wanton, and intentional negligence on the part of defendant, as averred in the complaint.

Whether considered as a common-law action, or one under the employés act, the plaintiff has failed to make out a case. The proofs justified the general charge for the defendant, and it should have been given. The judgment below will be reversed and the cause remanded.

MASTER AND SERVANT. THE DUTY OF A MASTER TO HIS SERVANT requires the exercise of reasonable care in furnishing suitable machinery and appliances for carrying on the business in which such servant is employed and keeping such appliances in repair, including the duty of making inspection and test at proper Interval: Nord Deutscher etc. S. S. Co. v. Ingebregsten, 57 N. J. L. 400; 51 Am. St. Rep. 604, and note.

MASTER AND SERVANT-ASSUMPTION OF RISK GENERALLY.-A person, when he enters the service of another, assumes only such risks as are usually incident thereto: Settle v. St. Louis etc. R. R. Co., 127 Mo. 336; 48 Am. St. Rep. 633, and note.

MASTER AND SERVANT-ASSUMPTION OF RISKS-PATENT DEFECTS.-A servant is bound to know, and assumes the risk of, all defects in appliances about which he is employed that are open to observation or can be ascertained by the ordinary exercise of the senses: Taylor v. Wootan, 1 Ind. App. 188; 50 Am. St. Rep. 200, and note.

MASTER AND SERVANT-NOTICE OF DEFECTS-CONTINUING IN SERVICE.-If a servant, knowing of a defect in machinery, materials, or premises furnished for his use, without complaint or promise from the master or superior servant to repair, continues to use them, he assumes the risk and waives all claim against the master for injury therefrom: Breckenridge Co. v. Hicks, 94 Ky. 362; 42 Am. St. Rep. 361, and note; but see Meador v. Lake Shore etc. Ry. Co., 138 Ind. 290; 46 Am. St. Rep. 384, and note.

BAYZER V. MOMILLAN MILL COMPANY.

[105 ALABAMA, 395.]

WATERS AND WATERCOURSES-NAVIGABLE STREAMS, A fresh water stream above tide water is navigable and a public highway only when it is susceptible of being used in ordinary condition, for a highway of commerce, over which there may be trade, travel, transportation, or valuable floatage for a season or considerable portion of the year. All fresh water streams which have the requisite volume of water only occasionally and for brief periods, as the result of freshets, are unnavigable and private property.

WATERS AND WATERCOURSES-NAVIGABLE STREAMS. A fresh water creek above tide water not declared public by law, not navigated by boats, keels, or lighters of any kind, and not utilized for any kind of transportation of commodities, except sawlogs and lumber, and for this only at spasmodic and occasional periods in the winter or spring as the result of freshets, is not a navigable stream, but is private property, which may be obstructed without liability for damages.

Action to recover damages for the obstruction of an alleged navigable stream, known as "Pigeon Creek." Judgment for defendants, and plaintiffs appealed.

Farnham & Crum and Gamble & Powell, for the appellants. Stallworth & Barnett and J. M. Davidson, for the appellees.

397 HARALSON, J. The question as to what constitutes a navigable stream, as contradistinguished from a private one, has from an early day been the subject of many decisions of this court. This stream is above tide water. In determining the navigability of such streams, the test is to be found in their navigable capacity. As was said in The Daniel Ball, 10 Wall. 557: "Those rivers must be regarded as public, navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."

In Morrison v. Coleman, 87 Ala. 657, which is one of our latest adjudications on the subject, this court, after a review of the authorities, announced its conclusion as follows: "We declare, as the result of our own rulings and of the weight of authority, that a fresh water stream above tide water is navigable and a public highway when, and only when, it is susceptible of being used, in ordinary condition, for a highway of commerce, over which there may be trade, travel, transportation, or valuable floatage. We are not to be understood as affirming that, to be a navigable stream or public highway, it must be susceptible of

the enumerated uses for the entire year. Most inland streams contain a greater volume of water in winter than in summer. Our precise meaning is, that for a season or considerable part of the year, it 398 must contain that depth of water which fits it for auch transportation. It excludes all those streams which have the requisite volume of water only occasionally, as the results of freshets, and for brief periods, as unnavigable, and private property." Again, it was said in Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439: "In determining the character of a stream, inquiry should be made as to the following points: whether it is fitted for valuable floatage; whether the public or only a few individuals are interested in transportation; whether any great public interests are involved in the use of it for transportation; whether the periods of its capacity are sufficiently long to make it susceptible of use beneficially to the public; whether it has been previously ased by the people generally, and how long it has been so used; whether it was meandered by the government surveyors or ineluded in the surveys; whether, if declared public, it will probably in future be of public use for carriage. And in the application of these inquiries to the facts of the case, it is to be remembered that the onus probandi is upon the party claiming that the stream above tide water is public." In the case last cited, many reasons are stated, in the interest of the public why such streams should not be held to be public: "Every milldam on any of those creeks, every bridge over them, every water gap, and every footlog, could be treated as a nuisance, at the option of any individual who might think proper to go upon the stream and prepare a raft of timber to await a rise from a freshet to float his raft down; and he might sue the owners of mills for all damage sustained in consequence of the interference of the same."

Again, it has been held that a creek, not affected by the ebb and flow of the tide, which had never been declared a public highway by legislative authority, and was not treated as a navigable stream by the United States surveyors, is not navigable or public, though during twenty years keel-boats, loaded with cotton, had been several times floated, and timber and lumber rafted down it during the winter season, but during the summer, there was not sufficient water for these purposes: Ellis v. Carey, 30 Ala. 725; Lewis v. Coffee County, 77 Ala. 192; 54 Am. Rep. 55.

When the facts are ascertained, whether a stream is navigable or public is a question of law. In this case, 399 the facts bearing on this inquiry are not in conflict. It does not appear that Pigeon Creek has ever been utilized for any other kind of transporta

tion of commodities for market, other than sawlogs and lumber, and this at spasmodic and occasional periods in the winter or spring as the result of freshets; or that for any considerable part of the year did the depth of its water fit it for such transportation; or that any boats, keels, or lighters, propelled by steam, sail, pole, or oar had ever navigated its waters; or that it was exempt from the public surveys of the government, as a public stream, or declared to be such by the legislature of the state. Nor was there any evidence of the character and extent of the forests in the country through which it ran, and the number of people engaged in the mill or rafting business, so that it might be seen to what extent it had been or might be utilized in the future for purposes specified in the complaint. There does not appear that there was ever, at any time, such a state of facts as, under the foregoing and our other adjudications, would authorize us to declare this to be a public or navigable stream: Bullock v. Wilson, 2 Port. 436; Peters v. New Orleans etc. R. R. Co., 56 Ala. 528; Walker v. Allen, 72 Ala. 457; Sullivan v. Spotswood, 82 Ala. 163; Harold v. Jones, 86 Ala. 274.

The plaintiffs based their recovery on the allegation that this creek was, at the time of the damage complained of, a common and public highway for the purposes specified. Their right of recovery, in any event, is rested on their making good this averment, which they have failed to do. The general charge for defendant, if requested, might have been well given; and since plaintiffs, in no event, could recover, it is unnecessary to consider the errors assigned. If any existed, they were harmless.

Affirmed.

WATERS-NAVIGABLE STREAMS.-The navigability of fresh water nontidal 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 for such length of time during the year as will make them valuable as public highways: Gaston v. Mace, 33 W. Va. 14; Am. St. Rep. 848, and note. Navigable waters include not only those in which the tide ebbs and flows, but those which are navigable in fact and afford a channel for commerce, or subserve some other useful beneficial purpose: Lamprey v. State, 52 Minn. 181: 38 Am. St. Rep. 541. In all of the original thirteen states, except North Carolina, Pennsylvania, and Virginia, it is held that rivers above the ebb and flow of the tide, and rivers in which there is no tide, are non-navigable: Extended note to Miller v. Mendenhall, 19 Am. St. Rep. 228. See, also, the note to St. Louis etc. Ry. Co. v. Ramsey, 22 Am. St. Rep. 201.

COBB V. GARner.

[105 ALABAMA, 467.]

PROBATE SALES-COLLATERAL ATTACK UPON.-In the absence of fraud or collusion, the judicial determination by a probate court, that there are debts against an estate over which it has Jurisdiction, and that a sale of the land is necessary, is conclusive against all who are parties to that proceeding and upon a chancery or other court in any collateral proceeding or suit, so far as the rights of bona fide purchasers are concerned. Parties to such decree cannot Impeach the sale collaterally on the ground that they were ignorant of their rights, that such debts were barred by the statute of limitations, and for fraud, the facts of which are not stated.

LIMITATIONS OF ACTIONS.-DEBTS AGAINST A DECEDENT'S ESTATE evidenced by his written obligation under seal for the payment of money are not barred by the statute of limitations until the expiration of ten years from maturity.

PROBATE SALES-INJUNCTION AGAINST JUDGMENT.— In a suit to set aside a regular and authorized probate sale of land and to enjoin the purchaser from enforcing a judgment obtained by him in an action of unlawful detainer against the complainants in possession, an injunction should not be granted in the absence of an allegation of the purchaser's insolvency.

Martin & Bouldin, for the appellant.

J. E. Brown, for the appellees.

469 COLEMAN, J. One James A. Toney, having been appointed, gave bond and qualified as the administrator of the estate of Celia Berry, deceased. Upon his petition and proof taken as in chancery proceedings, the probate court decreed the sale of certain lands for the payment of debts of the estate. At the sale William M. Cobb, appellant, became the purchaser, paid the purchase money, and received a deed of conveyance to the lands. At the time of the proceedings in the probate court for the sale of the land, and at the time of the sale and purchase by William M. Cobb, the appellees, Harriet Garner and Jane Connelly, were in possession of the lands as the children and heirs of Celia Berry, deceased. William M. Cobb instituted a suit for unlawful detainer against them, before a justice of the peace, and recovered a judgment for the possession. Thereupon, appellees filed the present bill against William M. Cobb, and prayed that the decree of sale by the probate court be set aside and annulled, the deed to Cobb, the purchaser, be canceled as a cloud upon their title, and that the respondent be enjoined from further prosecuting his action for the recovery of the possession of the land. The court issued the writ of injunction as prayed for in the bill. The averments of the bill upon which complainants rely for relief are, that they were ignorant of their rights, and did not contest the proceeding in the probate court for the sale of the land, and that