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rowboats for that purpose, are unable to use From these findings of fact, it is concluded the same on said river in front of plaintiffs' that the plaintiffs are entitled to a perpetual premises, to cross the river to attend school; injunction against these defendants and each but are compelled to cross the river on foot of them from obstructing the Humptulips over said logs, and are in great danger on river to navigation in front of the lands of account of having to cross the river over de these plaintiffs, and using the said river in fendants' logs. Found that plaintiffs, by | front of plaintiffs' premises for the purpose reason of the obstructions to said river, were of storing logs either in the water of said at much greater expense to ship in their river or upon or against the banks above supplies, etc.; that the boom company had or below mean high water, from using any kept the river, from its boom to the west artificial means above the lands and premises bank of said river filled with sawlogs almost of these plaintiffs to increase the flow or continuously since the 1st day of September, volume of water in front of plaintiffs' prop1905; that it had used that portion of the erty, and other conclusions of law of similar west bank of said river belonging to plain- | import. tiffs both above and below the line of mean From these findings and conclusions the high water as the west wall of said boom; court made the following decree: "(a) That that the whole bed of the river was filled the Grays Harbor Boom Company and the with logs from top to bottom in places above Humptulips Driving Company, and the offithe surface of the water; and that the boom cers, agents, representatives, and employés was so located and operated that it acted as of each of said corporations, be, and they a dam, by reason of which the water backed are hereby perpetually enjoined and restrainover plaintiffs' premises to a depth of sev ed from obstructing the Humptulips river to eral feet, and that such backwater over- | navigation, from the mouth of said river, flowed portions of plaintiffs' premises to where it empties into Grays Harbor up to plaintiffs' injury; that the logs are jammed the north line of the lands and premises beand lodged in the river in front of plaintiffs' | longing to these plaintiffs and described in premises above and below the line of mean the complaint herein, and particularly from high water and against the banks thereof, obstructing said river to navigation in front grind and carry away quantities of plain- of the lands and premises of these plaintiffs, tiffs' soil, thus doing plaintiffs' premises dam- | described as follows, to wit: Lot 1 in secage, which obstruction and damages are tion 15, lots 3 and 4 in section 10, lots 1 continuous from day to day so long as said and 3, the southwest quarter of the northriver is jammed with logs from bank to east quarter, and the east one-half of the bank; and that the logs lying partly out southeast quarter of section 9, all in townupon the bank, when carried down, cut

ship 18 north, range 11 west of the Willamaway quantities of the soil and thus destroy ette Meridian, situate in Chehalis county, the lands of the plaintiffs; and that at cer Washington, where said lands abut upon tain times the defendants during recent said Humptulips river, of which lands and months have hauled the sawlogs off the banks premises these plaintiffs were and are the of plaintiffs' premises into the river with a owners in fee simple in possession of, and endonkey engine operated upon a float in said titled to the possession thereof, down to the river, and plaintiffs' premises have been dam- / line of mean high water on the banks of aged thereby and will continue to be dam- | said river. (b) And from sorting, holding or aged so long as so used; that the defendants ! rafting logs in the waters of said river in maintain and operate a number of splash front of said lands of these plaintiffs, or dams upon the Humptulips river, and the upon or against the banks of said premises branches thereof, above the lands of plain above or below the line of mean high water tiffs, and that by reason of such splash dams and from in any manner using the west bank and the lifting of the gates thereof, the of said river in front of plaintiffs' premises depth of the waters in the river is raised in above the line of mean high water. (c) the vicinity of plaintiffs' premises to the ex From operating any boom within said Humptent of two feet, and that, by reason of these tulips river in such manner as by the method artificial freshets, sawlogs are carried down of operation solely cause sawlogs to jam or said river and cause jams in front of plain-| fill the river so as to prevent the navigation tiffs' premises, to their injury; that plain or use of the river by these plaintiffs for tiffs have thereby been deprived of the use of navigation in the usual manner, or from the water of said river for navigation and maintaining a boom in said river or obstructfor domestic and live stock purposes; that ing said river so as to raise the water, caussuch freshets and artificial freshets damage ing plaintiffs' lands to overflow. (d) From the land and endanger the lives of the family operating or using any artificial means, such and of the live stock of the plaintiffs; that as splash dams, within said river or its tribthe damages are irreparable and cannot be utaries, above the lands and premises of estimated in dollars and cents; and that these plaintiffs, to increase the volume or said conditions will increase from time to i flow of water past plaintiffs' premises in time as the logging industry above the lands | such manner as to injure or damage plainof the plaintiffs increases; and much more tiffs' property. (e) From in any manner octo the same effect.

cupying, using, or damaging the premises of

these plaintiffs, abutting upon the Humptu their powers, privileges, and duties is not lips river above the line of mean high water. long and does not seem to us to be difficult (f) From exercising any of the powers or au of construction. The first section provides thority given to the defendants or either of that (Laws 1889-90, p. 470): "Any corporathem by the statute of the state of Wash tion heretofore or hereafter organized in the ington, or by reason of their plat or charter, state of Washington for the purpose of in a manner that will directly cause any of catching, booming, sorting, rafting and holdplaintiffs' lands to be overflowed or damaged. ing logs, lumber or other timber products, (g) That as to that portion of the plaintiffs' shall have power to acquire, hold, use, and premises located within the defendant's (the transfer all such real and personal property Grays Harbor Boom Company's) boom, these or estate, by lease or purchase, as shall be defendants and each of them and each of necessary for carrying on the business of their officers, agents, representatives, and said corporation.” So far the statute seems employés are hereby perpetually enjoined to presuppose that the corporation will obfrom using the banks of these plaintiffs' tain all ground necessary for the operation lands above the line of mean high water for of its business as other corporations do. It one side or retention wall of the boom, and then proceeds: "If such corporation shall the said boom company is hereby ordered not be able to agree with persons owning and required to keep open a waterway next land, shore rights or other property sought to the said west bank of plaintiffs' water to be appropriated, as to the amount of comfront within said boom, which waterway pensation to be paid therefor, the compensashall be kept open to navigation, and shall tion therefor may be assessed and determined be of the width of at least 50 feet. (b) And and the appropriation made in the manner it is further ordered and adjudged that these provided by law for the appropriation of plaintiffs do have and recover of and from private property by railways.” The remainthe defendants herein, their costs to be taxed der of the section simply provides for a reat $19, and that execution issue therefor." version in case the land is not used for the

The first question discussed is, have the purposes specified. Section 2 provides for respondents, as riparian owners, the right, filing plat of surveys, etc. Section 3 deals as an incident of their land, of unobstructed with the character of the construction; and access to the navigable waters of the stream? the remainder of the act, with the excepIn fact, the greater portion of the argument | tion of section 9, consists of regulations beof respective counsel is devoted to this ques tween the companies and their patrons. Section. It is stoutly maintained by the appel- tion 9 describes what waters are navigable, lants that this question has been answered and decrees the use to be public. So, if in the negative by this court in Eisenbach v. there is any grant by the state to these comHatfield, 2 Wash. 236, 26 Pac. 539, 12 L. R. panies which would bring them within the A. 632; and in subsequent cases sustaining rule announced in Eisenbach v. Hatfield, that decision, while the respondents contend supra, and a multitude of similar cases, it that the questions at issue here are not in must be found in section 1, for that is the volved in that case. An examination of the only section which assumes to grant any pubwhole record in this case convinces us that lic rights, and we look in vain to this section it is not necessary to determine the scope of for any license by the state to boom compathe Hatfield decision, for, conceding for the nies to interfere in any way with the navipurposes of this case that it was decided in gation of the streams, or with the use of that case--and properly decided—that a ri abutting land owned by others. On the parian proprietor on the shores of the sea other hand, this statute, in addition to a has no rights as against the grantee of the legislative recognition of shore rights in the state to the occupancy of the shore lands in upland owner, as opposed at least to the front of his upland, we do not think that this rights of the boom companies, by the plainis a controlling question in this case. As est implication imposes upon the boom comwe construe the statute under which the ap pany the necessity of first obtaining the pellants claim

their rights, no grant is made property necessary for carrying on its busito boom companies of this state which in any ness, either by purchase, lease, or condemnamanner interferes with the rights of riparian tion. It was evidently the object of the law owners or of any one else, or interferes with to prevent conflicting rights, instead of enthe right of navigation to any exclusive ex couraging them by an arbitrary appropritent. Such companies are simply empowered | ation by the more powerful party to the to do business under certain restrictions, and controversy, and to this end the right of are entitled to a joint use of the waters of condemnation was bestowed. navigable rivers. The main object of the Again, as indicating the intention of the act which provides for these companies seems Legislature to prevent any infringement of to be to empower them to collect fees for the rights of others by these and kindred the booming and storage of logs, and, recog- | corporations, the Legislature at the session nizing the public importance of the enter of 1895, in an act relating to boom compaprise, the Legislature conferred the right of nies entitled, “An act to provide for the oreminent domain' upon such companies. The ganization and incorporation of companies act creating these companies and defining for clearing out and improving rivers and

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streams in this state, and for the purpose of , in the act in question, have not attempted to driving, sorting, holding and delivering logs, confer upon the boom companies organized and other timber products thereon, fixing thereunder any such right. In section 4 of maximum tolls therefor,” an act which was the act (Laws 1895, p. 130, c. 72), after proevidently intended simply to enlarge the viding what such companies may do, it is prorights of booming companies, provided, in sec vided: Nothing shall be constructed that tion 4, that nothing shall be constructed that shall in any way interfere with the navigashall in any way interfere with the navigation tion of such river or stream, or the use of its of such river or stream or the use of its wa waters for any purpose.' From which it will ters for any purpose; provided, further that be seen that the Legislature not only did not "any such wing dams, sheer booms, dams with intend to give to such companies the right to gates or otherwise, shall not be so construct interfere with navigation, but took pains by ed or used as to in any manner injure or express provision to provide that they should damage any lands adjacent to such stream have no such right." From an examination by overflowing same or causing logs or other of the statute, we conclude that, with the extimber to accumulate on any land adjacent to ception of the right of eminent domain and such stream so dammed or used." That it the right to charge and collect fees, the boom was intended that the provisions of this act company stands upon no different footing should apply to boom companies under prior from an individual. That the Legislature did acts is manifest from the provisions of sec not intend to give any exclusive right of navtion 8, which is as follows: “Duly organized igation to boom companies, although they boom companies at present operating upon may be dealing in business of great magany of the streams or rivers of this state may nitude, but that they were restricted to a file amended articles of incorporation to em joint user of the waters of the stream, and brace the provisions of this act, and, for the that it was the plain intention to protect purpose of time limitations mentioned in this from their encroachments all other rights of act, the time of filing such amended articles navigation and rights of use in the waters of of incorporation shall be deemed to be the the river is evident from the enactments on time of organization thereof, but failure to the subject. This being so, the boom comcomply with the provisions of this act shall pany will be controlled by the same rule that work forfeiture of the rights of such corpora is made applicable in the ordinary case of log tions only so far as the same are subjoined driving in meandered streams. under the provisions of this paragraph." Again, according to the testimony in this Practically all the rights which are granted case, the appellants have taken possession of to boom companies under the act of 1889-90 the private property of the respondents, and are carried forward into the act of 1895, the statute could not confer such a right even thereby simply enlarging the rights of boom if it were the legislative intent, for the deccompanies, and it is not to be presumed that, laration of the Constitution of assertion of within the contemplation of the legislative ownership only goes to the beds and shores mind, one boom company organized under the of all navigable waters in this state up to act of 1890 would be permitted to interfere and including the line of ordinary high tide, with the rights of navigation and to commit in the waters where the tide ebbs and flows, depredation upon abutting lands, which rights and up to and including the line of ordinary were not accorded to boom companies or high water within the banks of all navigable ganized under the act of 1895, although they rivers and lakes, and no right is asserted might be incorporated under a different whatever above the line of mean high tide, name. This provision of the statute was con which is evidently intended to be the dividing strued by this court-if, indeed, such provi line between the rights of the public and the sion was susceptible of construction—in Carl rights of the private individual. Again, in y. West Aberdeen Land, etc., Co., 13 Wash. the interest of appellants' business the re617, 43 Pac. 890, where it was held that spondents' lands are overflowed by backwaboom companies organized under the laws of ter, and by the use of splash dams logs are 1895 have no right to interfere with the run on to their private lands and remain navigation or use of the streams upon which there indefinitely or until it is convenient for they have constructed booms. This was an the appellants to remove them, which action action to prevent the Grays Harbor & Neus on the part of the appellants is directly in kah Boom Company from interfering with the face of the statute above quoted. To say the passage down the river of the plaintiff's nothing of taking or appropriating, this is logs. In the course of its opinion, the court certainly a damaging of property, and section said: “The third objection is founded upon 16 of article 1 of the state Constitution prothe claim of rights by the appellant boom vides: "No private property shall be taken company under the act above referred to, and or damaged for public or private use without a large number of authorities have been cited just compensation having been first made or to show that it is competent for the Legisla paid into court for the owner.” This proviture to provide that such boom companies sion in the fundamental law was construed may interfere with the navigation of nav by this court, in Brown v. Seattle, 5 Wash. igable streams. But such authorities are not 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161, in point, for the reason that the Legislature, and in many subsequent cases, to mean just

what it said, and it can make no possible dif der such announcement, there can be no ference whether the property abuts on a question that the appellants should be enstreet or river, or whether the invader of that joined from in any manner operating their right is a municipality, an individual, or a business upon the lands of the respondents, boom company, the constitutional guaranty and there can be no justification for the apapplies equally in both cases. It has been the plication of a different rule where the stream uniform holding of this court that the owners happens to be meandered, as applied to damof the banks of rivers should be protected age done to the land, in the nonmeandered from ravages made by driving logs down streams, the driver of the logs being given such rivers. This policy was announced and the benefit of the same use of the water that earlier cases reviewed in Monroe Mill Co. v. he would have in a meandered stream. Menzel, 35 Wash. 487, 77 Pac. 813, 70 L. R. It is claimed by the appellants, in conA. 272, 102 Am. St. Rep. 905, where, in the clusion, that this injunction cannot be susdiscussion of the case, it is said: “Another ained by reason of the rule announced by provision of the decree, with reference to the the court in Mitchell V. Lea Lumber Co., methods attending respondent's navigation, 86 Pac. 405, to the effect that no damages also calls for examination. It will be remem can be recovered for injuries which are merebered that, by its terms, the decree prohibits ly the natural result of the use of a stream appellant from interfering with respondent's as a highway, where the operations have employés in the way of preventing them from been conducted in a reasonably careful mangoing upon the banks of the stream upon ap ner, and that, inasmuch as this decree is not pellant's lands, for the purpose of breaking based on negligence, it should not be allowed jams of shingle bolts, so long as the going up to stand. This announcement was not neceson the banks does no injury to appellant or sary to the decision of the case in Mitchell bis lands. We think this provision of the de v. Lea Lumber Co., supra, inasmuch as it cree is also erroneous. We believe we went was determined that there was proof of neg. as far as we should go in the interest of pub ligence on the part of the drivers. But, whatlic convenience, when we held, in Watkins v. ever may be said of the soundness of the Dorris, supra, that private landowners hold doctrine announced in that case, the questhe beds of unmeandered streams subject to tion is not involved here, where there has the easement of driving timber products over not only been an invasion of the constituthe land. But we tried to make it clear in tional rights of the respondents, but an acthat case that the timber driver must confine tual, permanent taking and permanent use himself and his operations to the highway it made of respondents' land, not only by using self—the bed of the stream-until the land the west bank of their land as the west wall owner consents to the use of the banks, or of the boom, but by using the land itself as until the right to their use has been acquired a storage ground for logs that escape from in a lawful way. If a more emphatic state the boom, an actual taking and damaging ment of that rule is necessary, we now wish which, as we have seen, could not be into be understood as making it with all need dulged in without previous compensation. In ed emphasis. The fundamental principle of addition to this, when it conclusively appears right in the landowner to control his own that the business in which the company is premises, outside of the bed of the stream, engaged cannot be carried on without dammust not be violated. To leave parties under aging private interests, it would seem that such terms as this decree provides would, in the rule announced in the Lea Lumber Commany instances, invite trouble and litigation. pany Case could not logically be applied. Each one would assume to be his own judge And, if it be true, as we said in Monroe Mill as to whether any injury is done to the land. Co. v. Menzel, supra, that the landowner What might appear to the landowner as in has a right to enjoin the drivers of logs jury might not so appear to the timber driver, from going on to his banks, even when it and thus a controversy would at once arise, was conceded that no injury was done, for probably requiring repeated litigation to set the reason assigned that the fundamental tle. The driver must know from the begin principle of right in the landowner to conning that he must, in no event, go upon the trol his own premises outside of the bed of banks of the stream in his operations without

the stream must not be violated, no room is the owner's permission, and thus controver left for appellants' contention in this regard. sies about damages accruing in that way will But, outside of that question, in this case be avoided. Enough controversies will arise without doubt the respondents have a right about the manner of operating in the bed of to rely upon the protection guarantied to

them by the statute, the same statute which adjacent land, without adding thereto those authorizes the organization of boom and drivarising from semi-legalized trespass upon pri ing companies : (1) That they shall not vate premises, which would be the case if it have the right in any way to interfere with were judicially held that one may operate the navigation of the stream or the use of upon private lands against the owner's con its waters for any purpose. (2) That they sent, and without compensation.” It would shall not have the right to injure or damage seem that this language might properly be 'any adjacent lands, etc. If they have no applied to the facts in this case, and that, un right to do this, it is plain that there is no

the stream to the possible damage of the th

room for the application of the rule of, would seem to be impracticable on many if damnum absque injuria, for, in this kind not all of the streams of the state. of a case, that rule is based upon the idea Construing the decree, then, with reference that a person is carrying on his business in to the case before the court, we are inclined a legal manner or under the sanction of the to the view that it is unobjectionable in every law, while, as we have seen, the law in this particular, and the judgment is therefore afcase expressly inhibits such a use.

firmed. The argument of appellants, based upon the difference between the importance and MOUNT, C. J., and RUDKIN, ROOT, and magnitude of the logging industry and the CROW, JJ., concur. farming and other interests on the river, an argument which is largely the basis of their whole contention, is one that ought not to

(44 Wash. 699) appeal to an American court where justice is LOWNSDALE et ux. V. GRAYS HARBOR dealt out with an even hand to individual

BOOM CO. and corporation, to rich and poor, to strong (Supreme Court of Washington. Dec. 10, 1906.) and weak. Every citizen of this state must, not only in theory, but in practice, be ac

Appeal from Superior Court, Chehalis

County; W. 0. Chapman, Judge. corded by the law the prompt and efficient

Action by J. P. 0. Lownsdale and wife protection of his rights, regardless of the

against the Grays Harbor Boom Company. magnitude of his interests. It is the pro

From a judgment in favor of plaintiffs, detection of the rights which is the object of

fendant appeals. Affirmed. the solicitude of the law, and not the ascertainment of the mercantile value of such J. B. Bridges and Ben Sheeks, for appelright.

lant. J. W. Robinson and J. C. Cross, for reIt is contended that, in any event, the spondents. decree is too broad, and that its practical effect will be to prevent the boom company

PER CURIAM. For the reasons assigned from doing business on the Humptulips river. in the case of Burrows v. Grays Harbor We do not think the decree can be properly Boom Company (decided by this court De so construed. While it is true that para cember 8, 1906) 87 Pac. 937, the judgment in graph "a" of the decree enjoins and restrains this case will be affirmed. the appellants from obstructing the Humptulips river to navigation within a certain distance, and particularly from obstructing

(44 Wash. 699) said river to navigation in front of the lands HISCOCK v. GRAYS HARBOR BOOM CO. and premises of these respondents, the decree (Supreme Court of Washington. Dec. 10, 1906.) will be construed only with reference to the rights of the respondents as alleged and

Appeal from Superior Court, Chehalis proven. Paragraph "b" is necessary for the

County; W. 0. Chapman, Judge. protection asked for by the respondents, and

Action by F. K. Hiscock against the Grays the same may be said of paragraph "c.”

Harbor Boom Company. From a judgment Paragraph "d” is no stronger than the stat

in favor of plaintiff, defendant appeals. Af

firmed. ute under which the companies are organized. Paragraph “e” refers especially to the prem J. B. Bridges and Ben Sheeks, for appelises of the respondents, and falls within all lant. Bogle, Hardin & Spooner, for respondprior cases decided by this court. To the ent, same effect is paragraph "f". The first part of paragraph "g” is with reference to the PER CURIAM. For the reasons assigned actual use of the respondents' lands, and the in the case of Burrows v. Grays Harbor following--"the said boom company is hereby Boom Company (decided by this court Deordered and required to keep open a water cember 8, 1906) 87 Pac. 937, the judgment in way next to the west bank of the plaintiffs' this case will be affirmed. lands between its boom and said bank, the whole length of plaintiffs' water front within said boom, which waterway shall be kept

(44 Wash. 673) open to navigation and shall be of the width

HOESCHLER et al. v. BASCOM et al. of at least 50 feet”-is correct, upon the

(Supreme Court of Washington. Dec. 12, 1906.) theory outlined by the statute that it is the duty of the boom company to obtain the


CEPTIONS-NECESSITY. lands and rights necessary to operate their

Where no exceptions were taken to the business. This construction does away with court's findings of fact, they are not subject to the contention, which we think is not a sound review by the appellate court. one, that the statute requires a free passage [Ed. Note.--For cases in point, see Cent. Dig. on both sides of the boom for all boats, ves

vol. 3, Appeal and Error, $ 1536.] sels, or stream craft of any kind whatsoever. Appeal from Superior Court, Spokane or for ordinary purposes of navigation, which County; W. A. Huneke, Judge.

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