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From these findings of fact, it is concluded that the plaintiffs are entitled to a perpetual injunction against these defendants and each of them from obstructing the Humptulips river to navigation in front of the lands of these plaintiffs, and using the said river in front of plaintiffs' premises for the purpose of storing logs either in the water of said river or upon or against the banks above or below mean high water, from using any artificial means above the lands and premises of these plaintiffs to increase the flow or volume of water in front of plaintiffs' property, and other conclusions of law of similar import.

rowboats for that purpose, are unable to use the same on said river in front of plaintiffs' premises, to cross the river to attend school; but are compelled to cross the river on foot over said logs, and are in great danger on account of having to cross the river over defendants' logs. Found that plaintiffs, by reason of the obstructions to said river, were at much greater expense to ship in their supplies, etc.; that the boom company had kept the river, from its boom to the west bank of said river filled with sawlogs almost continuously since the 1st day of September, 1905; that it had used that portion of the west bank of said river belonging to plaintiffs both above and below the line of mean high water as the west wall of said boom; that the whole bed of the river was filled with logs from top to bottom in places above the surface of the water; and that the boom was so located and operated that it acted as a dam, by reason of which the water backed over plaintiffs' premises to a depth of several feet, and that such backwater overflowed portions of plaintiffs' premises to plaintiffs' injury; that the logs are jammed and lodged in the river in front of plaintiffs' premises above and below the line of mean high water and against the banks thereof, grind and carry away quantities of plaintiffs' soil, thus doing plaintiffs' premises damage, which obstruction and damages are continuous from day to day so long as said river is jammed with logs from bank to bank; and that the logs lying partly out upon the bank, when carried down, cut away quantities of the soil and thus destroy the lands of the plaintiffs; and that at certain times the defendants during recent months have hauled the sawlogs off the banks of plaintiffs' premises into the river with a donkey engine operated upon a float in said river, and plaintiffs' premises have been damaged thereby and will continue to be damaged so long as so used; that the defendants maintain and operate a number of splash dams upon the Humptulips river, and the branches thereof, above the lands of plaintiffs, and that by reason of such splash dams and the lifting of the gates thereof, the depth of the waters in the river is raised in the vicinity of plaintiffs' premises to the extent of two feet, and that, by reason of these artificial freshets, sawlogs are carried down said river and cause jams in front of plaintiffs' premises, to their injury; that plaintiffs have thereby been deprived of the use of the water of said river for navigation and for domestic and live stock purposes; that such freshets and artificial freshets damage the land and endanger the lives of the family and of the live stock of the plaintiffs; that the damages are irreparable and cannot be estimated in dollars and cents; and that said conditions will increase from time to i flow of water past plaintiffs' premises in

time as the logging industry above the lands of the plaintiffs increases; and much more to the same effect.

From these findings and conclusions the court made the following decree: "(a) That the Grays Harbor Boom Company and the Humptulips Driving Company, and the officers, agents, representatives, and employés of each of said corporations, be, and they are hereby perpetually enjoined and restrained from obstructing the Humptulips river to navigation, from the mouth of said river, where it empties into Grays Harbor up to the north line of the lands and premises belonging to these plaintiffs and described in the complaint herein, and particularly from obstructing said river to navigation in front of the lands and premises of these plaintiffs, described as follows, to wit: Lot 1 in section 15, lots 3 and 4 in section 10, lots 1 and 3, the southwest quarter of the northeast quarter, and the east one-half of the southeast quarter of section 9, all in township 18 north, range 11 west of the Willamette Meridian, situate in Chehalis county, Washington, where said lands abut upon said Humptulips river, of which lands and premises these plaintiffs were and are the owners in fee simple in possession of, and entitled to the possession thereof, down to the line of mean high water on the banks of said river. (b) And from sorting, holding or rafting logs in the waters of said river in front of said lands of these plaintiffs, or upon or against the banks of said premises above or below the line of mean high water and from in any manner using the west bank of said river in front of plaintiffs' premises above the line of mean high water. (c) From operating any boom within said Humptulips river in such manner as by the method of operation solely cause sawlogs to jam or fill the river so as to prevent the navigation or use of the river by these plaintiffs for Mavigation in the usual manner, or from maintaining a boom in said river or obstructing said river so as to raise the water, causing plaintiffs' lands to overflow. (d) From operating or using any artificial means, such as splash dams, within said river or its tributaries, above the lands and premises of these plaintiffs, to increase the volume or

such manner as to injure or damage plaintiffs' property. (e) From in any manner occupying, using, or damaging the premises of

these plaintiffs, abutting upon the Humptulips river above the line of mean high water. (f) From exercising any of the powers or authority given to the defendants or either of them by the statute of the state of Washington, or by reason of their plat or charter, in a manner that will directly cause any of plaintiffs' lands to be overflowed or damaged. (g) That as to that portion of the plaintiffs' premises located within the defendant's (the Grays Harbor Boom Company's) boom, these defendants and each of them and each of their officers, agents, representatives, and employés are hereby perpetually enjoined from using the banks of these plaintiffs' lands above the line of mean high water for one side or retention wall of the boom, and the said boom company is hereby ordered and required to keep open a waterway next to the said west bank of plaintiffs' water front within said boom, which waterway shall be kept open to navigation, and shall be of the width of at least 50 feet. (h) And it is further ordered and adjudged that these plaintiffs do have and recover of and from the defendants herein, their costs to be taxed at $19, and that execution issue therefor."

The first question discussed is, have the respondents, as riparian owners, the right, as an incident of their land, of unobstructed access to the navigable waters of the stream? In fact, the greater portion of the argument of respective counsel is devoted to this question. It is stoutly maintained by the appellants that this question has been answered in the negative by this court in Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539, 12 L. R. A. 632; and in subsequent cases sustaining that decision, while the respondents contend that the questions at issue here are not involved in that case. An examination of the whole record in this case convinces us that it is not necessary to determine the scope of the Hatfield decision, for, conceding for the purposes of this case that it was decided in that case—and properly decided-that a riparian proprietor on the shores of the sea has no rights as against the grantee of the state to the occupancy of the shore lands in front of his upland, we do not think that this is a controlling question in this case. we construe the statute under which the appellants claim their rights, no grant is made to boom companies of this state which in any manner interferes with the rights of riparian owners or of any one else, or interferes with the right of navigation to any exclusive extent. Such companies are simply empowered to do business under certain restrictions, and are entitled to a joint use of the waters of navigable rivers. The main object of the act which provides for these companies seems to be to empower them to collect fees for the booming and storage of logs, and, recognizing the public importance of the enterprise, the Legislature conferred the right of eminent domain upon such companies. The act creating these companies and defining

As

their powers, privileges, and duties is not long and does not seem to us to be difficult of construction. The first section provides that (Laws 1889-90, p. 470): "Any corporation heretofore or hereafter organized in the state of Washington for the purpose of catching, booming, sorting, rafting and holding logs, lumber or other timber products, shall have power to acquire, hold, use, and transfer all such real and personal property or estate, by lease or purchase, as shall be necessary for carrying on the business of said corporation." So far the statute seems to presuppose that the corporation will obtain all ground necessary for the operation of its business as other corporations do. It then proceeds: "If such corporation shall not be able to agree with persons owning land, shore rights or other property sought to be appropriated, as to the amount of compensation to be paid therefor, the compensation therefor may be assessed and determined and the appropriation made in the manner provided by law for the appropriation of private property by railways." The remainder of the section simply provides for a reversion in case the land is not used for the purposes specified. Section 2 provides for filing plat of surveys, etc. Section 3 deals with the character of the construction; and the remainder of the act, with the exception of section 9, consists of regulations between the companies and their patrons. Section 9 describes what waters are navigable, and decrees the use to be public. So, if there is any grant by the state to these companies which would bring them within the rule announced in Eisenbach v. Hatfield, supra, and a multitude of similar cases, it must be found in section 1, for that is the only section which assumes to grant any public rights, and we look in vain to this section for any license by the state to boom companies to interfere in any way with the navigation of the streams, or with the use of abutting land owned by others. On the other hand, this statute, in addition to a legislative recognition of shore rights in the upland owner, as opposed at least to the rights of the boom companies, by the plainest implication imposes upon the boom company the necessity of first obtaining the property necessary for carrying on its business, either by purchase, lease, or condemnation. It was evidently the object of the law to prevent conflicting rights, instead of encouraging them by an arbitrary appropriation by the more powerful party to the controversy, and to this end the right of condemnation was bestowed.

Again, as indicating the intention of the Legislature to prevent any infringement of the rights of others by these and kindred corporations, the Legislature at the session of 1895, in an act relating to boom companies entitled, "An act to provide for the organization and incorporation of companies for clearing out and improving rivers and

streams in this state, and for the purpose of driving, sorting, holding and delivering logs, and other timber products thereon, fixing maximum tolls therefor," an act which was evidently intended simply to enlarge the to enlarge the rights of booming companies, provided, in section 4, that nothing shall be constructed that shall in any way interfere with the navigation of such river or stream or the use of its waters for any purpose; provided, further that "any such wing dams, sheer booms, dams with gates or otherwise, shall not be so constructed or used as to in any manner injure or damage any lands adjacent to such stream by overflowing same or causing logs or other timber to accumulate on any land adjacent to such stream so dammed or used." That it was intended that the provisions of this act should apply to boom companies under prior acts is manifest from the provisions of section 8, which is as follows: "Duly organized boom companies at present operating upon any of the streams or rivers of this state may file amended articles of incorporation to embrace the provisions of this act, and, for the purpose of time limitations mentioned in this act, the time of filing such amended articles of incorporation shall be deemed to be the time of organization thereof, but failure to comply with the provisions of this act shall work forfeiture of the rights of such corporations only so far as the same are subjoined under the provisions of this paragraph." Practically all the rights which are granted to boom companies under the act of 1889-90 are carried forward into the act of 1895, thereby simply enlarging the rights of boom companies, and it is not to be presumed that, within the contemplation of the legislative mind, one boom company organized under the act of 1890 would be permitted to interfere with the rights of navigation and to commit depredation upon abutting lands, which rights were not accorded to boom companies organized under the act of 1895, although they might be incorporated under a different name. This provision of the statute was construed by this court-if, indeed, such provision was susceptible of construction-in Carl v. West Aberdeen Land, etc., Co., 13 Wash. 617, 43 Pac. 890, where it was held that boom companies organized under the laws of 1895 have no right to interfere with the navigation or use of the streams upon which they have constructed booms. This was an action to prevent the Grays Harbor & Neuskah Boom Company from interfering with the passage down the river of the plaintiff's logs. In the course of its opinion, the court said: "The third objection is founded upon the claim of rights by the appellant boom company under the act above referred to, and a large number of authorities have been cited to show that it is competent for the Legislature to provide that such boom companies may interfere with the navigation of navigable streams. But such authorities are not in point, for the reason that the Legislature,

in the act in question, have not attempted to confer upon the boom companies organized thereunder any such right. In section 4 of the act (Laws 1895, p. 130, c. 72), after providing what such companies may do, it is provided: 'Nothing shall be constructed that shall in any way interfere with the navigation of such river or stream, or the use of its waters for any purpose.' From which it will be seen that the Legislature not only did not intend to give to such companies the right to interfere with navigation, but took pains by express provision to provide that they should have no such right." From an examination of the statute, we conclude that, with the exception of the right of eminent domain and the right to charge and collect fees, the boom company stands upon no different footing from an individual. That the Legislature did not intend to give any exclusive right of navigation to boom companies, although they may be dealing in business of great magnitude, but that they were restricted to a joint user of the waters of the stream, and that it was the plain intention to protect from their encroachments all other rights of navigation and rights of use in the waters of the river is evident from the enactments on the subject. This being so, the boom company will be controlled by the same rule that is made applicable in the ordinary case of log driving in meandered streams.

Again, according to the testimony in this case, the appellants have taken possession of the private property of the respondents, and the statute could not confer such a right even if it were the legislative intent, for the declaration of the Constitution of assertion of ownership only goes to the beds and shores of all navigable waters in this state up to and including the line of ordinary high tide, in the waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes, and no right is asserted whatever above the line of mean high tide, which is evidently intended to be the dividing line between the rights of the public and the rights of the private individual. Again, in the interest of appellants' business the respondents' lands are overflowed by backwater, and by the use of splash dams logs are run on to their private lands and remain there indefinitely or until it is convenient for the appellants to remove them, which action on the part of the appellants is directly in the face of the statute above quoted. To say nothing of taking or appropriating, this is certainly a damaging of property, and section 16 of article 1 of the state Constitution provides: "No private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner." This provision in the fundamental law was construed by this court, in Brown v. Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161, and in many subsequent cases, to mean just

what it said, and it can make no possible difference whether the property abuts on a street or river, or whether the invader of that right is a municipality, an individual, or a boom company, the constitutional guaranty applies equally in both cases. It has been the uniform holding of this court that the owners of the banks of rivers should be protected from ravages made by driving logs down such rivers. This policy was announced and earlier cases reviewed in Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 Pac. 813, 70 L. R. A. 272, 102 Am. St. Rep. 905, where, in the discussion of the case, it is said: "Another provision of the decree, with reference to the methods attending respondent's navigation, also calls for examination. It will be remembered that, by its terms, the decree prohibits appellant from interfering with respondent's employés in the way of preventing them from going upon the banks of the stream upon appellant's lands, for the purpose of breaking jams of shingle bolts, so long as the going upon the banks does no injury to appellant or his lands. We think this provision of the decree is also erroneous. We believe we went as far as we should go in the interest of public convenience, when we held, in Watkins v. Dorris, supra, that private landowners hold the beds of unmeandered streams subject to the easement of driving timber products over the land. But we tried to make it clear in that case that the timber driver must confine himself and his operations to the highway itself-the bed of the stream-until the landowner consents to the use of the banks, or until the right to their use has been acquired in a lawful way. If a more emphatic statement of that rule is necessary, we now wish to be understood as making it with all needed emphasis. The fundamental principle of right in the landowner to control his own premises, outside of the bed of the stream, must not be violated. To leave parties under such terms as this decree provides would, in many instances, invite trouble and litigation. Each one would assume to be his own judge as to whether any injury is done to the land. What might appear to the landowner as injury might not so appear to the timber driver, and thus a controversy would at once arise, probably requiring repeated litigation to settle. The driver must know from the beginning that he must, in no event, go upon the banks of the stream in his operations without the owner's permission, and thus controver⚫ sies about damages accruing in that way will be avoided. Enough controversies will arise about the manner of operating in the bed of the stream to the possible damage of the adjacent land, without adding thereto those arising from semi-legalized trespass upon private premises, which would be the case if it were judicially held that one may operate upon private lands against the owner's consent, and without compensation." It would seem that this language might properly be applied to the facts in this case, and that, un

der such announcement, there can be no question that the appellants should be enjoined from in any manner operating their business upon the lands of the respondents, and there can be no justification for the application of a different rule where the stream happens to be meandered, as applied to damage done to the land, in the nonmeandered streams, the driver of the logs being given the benefit of the same use of the water that he would have in a meandered stream.

It is claimed by the appellants, in conclusion, that this injunction cannot be sustained by reason of the rule announced by the court in Mitchell v. Lea Lumber Co., 86 Pac. 405, to the effect that no damages can be recovered for injuries which are merely the natural result of the use of a stream as a highway, where the operations have been conducted in a reasonably careful manner, and that, inasmuch as this decree is not based on negligence, it should not be allowed to stand. This announcement was not necessary to the decision of the case in Mitchell v. Lea Lumber Co., supra, inasmuch as it was determined that there was proof of negligence on the part of the drivers. But, whatever may be said of the soundness of the doctrine announced in that case, the question is not involved here, where there has not only been an invasion of the constitutional rights of the respondents, but an actual, permanent taking and permanent use made of respondents' land, not only by using the west bank of their land as the west wall of the boom, but by using the land itself as a storage ground for logs that escape from the boom, an actual taking and damaging which, as we have seen, could not be indulged in without previous compensation. In addition to this, when it conclusively appears that the business in which the company is engaged cannot be carried on without damaging private interests, it would seem that the rule announced in the Lea Lumber Company Case could not logically be applied. And, if it be true, as we said in Monroe Mill Co. v. Menzel, supra, that the landowner has a right to enjoin the drivers of logs from going on to his banks, even when it was conceded that no injury was done, for the reason assigned that the fundamental principle of right in the landowner to control his own premises outside of the bed of the stream must not be violated, no room is left for appellants' contention in this regard.

But, outside of that question, in this case without doubt the respondents have a right to rely upon the protection guarantied to them by the statute, the same statute which authorizes the organization of boom and driving companies: (1) That they shall not have the right in any way to interfere with the navigation of the stream or the use of its waters for any purpose. (2) That they shall not have the right to injure or damage any adjacent lands, etc. If they have no right to do this, it is plain that there is no

room for the application of the rule of damnum absque injuria, for, in this kind of a case, that rule is based upon the idea that a person is carrying on his business in a legal manner or under the sanction of the law, while, as we have seen, the law in this case expressly inhibits such a use.

The argument of appellants, based upon the difference between the importance and magnitude of the logging industry and the farming and other interests on the river, an argument which is largely the basis of their whole contention, is one that ought not to appeal to an American court where justice is dealt out with an even hand to individual and corporation, to rich and poor, to strong and weak. Every citizen of this state must, not only in theory, but in practice, be accorded by the law the prompt and efficient protection of his rights, regardless of the magnitude of his interests. It is the protection of the rights which is the object of the solicitude of the law, and not the ascertainment of the mercantile value of such right.

It is contended that, in any event, the decree is too broad, and that its practical effect will be to prevent the boom company from doing business on the Humptulips river. We do not think the decree can be properly so construed. While it is true that paragraph "a" of the decree enjoins and restrains the appellants from obstructing the Humptulips river to navigation within a certain distance, and particularly from obstructing said river to navigation in front of the lands and premises of these respondents, the decree will be construed only with reference to the rights of the respondents as alleged and proven. Paragraph "b" is necessary for the protection asked for by the respondents, and the same may be said of paragraph "c." Paragraph "d" is no stronger than the statute under which the companies are organized. Paragraph "e" refers especially to the premises of the respondents, and falls within all prior cases decided by this court. To the same effect is paragraph "f". The first part of paragraph "g" is with reference to the actual use of the respondents' lands, and the following "the said boom company is hereby ordered and required to keep open a waterway next to the west bank of the plaintiffs' lands between its boom and said bank, the whole length of plaintiffs' water front within said boom, which waterway shall be kept open to navigation and shall be of the width of at least 50 feet"-is correct, upon the theory outlined by the statute that it is the duty of the boom company to obtain the lands and rights necessary to operate their business. This construction does away with the contention, which we think is not a sound one, that the statute requires a free passage on both sides of the boom for all boats, vessels, or stream craft of any kind whatsoever, or for ordinary purposes of navigation, which

would seem to be impracticable on many if not all of the streams of the state.

Construing the decree, then, with reference to the case before the court, we are inclined to the view that it is unobjectionable in every particular, and the judgment is therefore affirmed.

MOUNT, C. J., and RUDKIN, ROOT, and CROW, JJ., concur.

(44 Wash. 699) LOWNSDALE et ux. v. GRAYS HARBOR BOOM CO.

(Supreme Court of Washington. Dec. 10, 1906.) Appeal from Superior Court, Chehalis County; W. O. Chapman, Judge.

Action by J. P. O. Lownsdale and wife against the Grays Harbor Boom Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

J. B. Bridges and Ben Sheeks, for appellant. J. W. Robinson and J. C. Cross, for respondents.

PER CURIAM. For the reasons assigned in the case of Burrows v. Grays Harbor Boom Company (decided by this court December 8, 1906) 87 Pac. 937, the judgment in this case will be affirmed.

(44 Wash. 699)

HISCOCK v. GRAYS HARBOR BOOM CO. (Supreme Court of Washington. Dec. 10, 1906.)

Appeal from Superior Court, Chehalis County; W. O. Chapman, Judge.

Action by F. K. Hiscock against the Grays Harbor Boom Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. B. Bridges and Ben Sheeks, for appellant. Bogle, Hardin & Spooner, for respondent.

PER CURIAM. For the reasons assigned in the case of Burrows v. Grays Harbor Boom Company (decided by this court December 8, 1906) 87 Pac. 937, the judgment in this case will be affirmed.

(44 Wash. 673)

HOESCHLER et al. v. BASCOM et al. (Supreme Court of Washington. Dec. 12, 1906.) APPEAL-PRESENTATION OF QUESTIONS-EXCEPTIONS-NECESSITY.

Where no exceptions were taken to the court's findings of fact, they are not subject to review by the appellate court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 1536.]

Appeal from Superior Court, Spokane County; W. A. Huneke, Judge.

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