Is there a statutory right to the use of the creeks in question?

The defendants claim a statutory right to the use of the creeks in question under an assertion that they are streams capable of floating down logs and timber, during freshets, and so within ch. 115 of the R.S.O. Two important questions may therefore arise at the hearing: first, whether the construction placed upon this statute in Boale v. Dickson, 13 C.P. 337, and followed by subsequent decisions, be the correct one; secondly, whether the streams were in fact originally capable at particular seasons of the year of floating logs down.