Burrows v. Grays Harbor Boom Co.

• Decision Date: 08 December 1906
• Citation: 87 P. 937,44 Wash. 630
• Parties: BURROWS et ux. v. GRAYS HARBOR BOOM CO. et al.
• Court: Washington Supreme Court

87 P. 937

44 Wash. 630

BURROWS et ux. v. GRAYS HARBOR BOOM CO. et al.

Supreme Court of Washington

December 8, 1906

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

Action by O. P. Burrows and wife against the Grays Harbor Boom Company and another. From a judgment in favor of plaintiffs defendants appeal. Affirmed.

1. NAVIGABLE WATERS--OBSTRUCTION--RIGHTS OF BOOM COMPANY.

Laws 1889-90, p. 470, § 1, providing that any corporation organized to boom logs may acquire real or personal property by lease or purchase necessary for carrying on its business and that if such a corporation cannot agree with persons owning land or other property as to the amount of compensation, the compensation may be assessed and determined, and the appropriation made in the manner provided for the appropriation of private property by railways, does not give such companies the right to interfere with the navigation of streams or with the use of abutting land by upper owners, especially in view of Laws 1895, p. 130, c. 72 § 4, providing that nothing shall be constructed by boom companies that shall in any way interfere with the navigation of rivers or streams.

2. EMINENT DOMAIN--CONSTITUTIONAL PROVISION--RIGHTS OF BOOM COMPANY.

Under Const. art. 1, § 16, providing that no private property shall be taken or damaged for private or public use without just compensation having been first made or paid into court for the owner, boom companies cannot be given the right by the Legislature to overflow the lands of upper riparian owners by backwater or to run logs on their land by the use of splash dams without having acquired by contract or condemnation.

3. NAVIGABLE WATERS--RIGHTS OF RIPARIAN OWNERS--PROTECTION BY INJUNCTION.

That the injuries to a riparian owner are the natural result of the use of a stream as a highway cannot be set up as a defense to a suit for an injunction against a boom company where it not only uses the water below highwater mark, but causes the lands of the riparian owners to be overflowed and logs to be driven thereon.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 248, 251.]

4. NAVIGABLE WATERS--DECREE.

In a suit for injunction against a boom company, a decree enjoining and restraining it from obstructing the river to navigation in front of the lands of plaintiff, from sorting, holding, or rafting logs in the waters of the river opposite their lands or on or against the banks of the premises, from operating any boom so as to cause logs to jam or fill the river so as to prevent navigation in the usual manner, from operating artificial means to increase the volume or flow of water past plaintiffs' premises or occupying or damaging the premises of plaintiffs, and from using the banks of their lands above the line of the mean high water for the retention of the boom was proper.

J. B. Bridges and Ben Sheeks, for appellants.

J. W. Robinson and Bogle, Hardin & Spooner, for respondents.

DUNBAR J.

This was a suit to enjoin the appellants from interfering with alleged rights of respondents as riparian owners and otherwise. The complaint is so long that space and time will permit presenting but a short summary of it. It alleged that the plaintiffs were the owners of certain lands bordering on the Humptulips river in Chehalis county, Wash.; that the river was about 250 feet in width, navigable for the floatage of sawlogs and other timber products, and for small boats; that the waters of the river opposite plaintiffs' premises were suitable for domestic purposes; that plaintiffs had built a home on the west bank of the river, and were residing there; that the river furnished them the most convenient public highway; that the defendants were corporations, under the laws of the state of Washington, and had constructed boomworks in the river immediately below the premises of the plaintiffs; that, by reason of such construction, the river, at and opposite plaintiffs' premises, was, for a great portion of the time, completely filled with sawlogs, thus depriving plaintiffs of their right to navigate said river and to cross the same and to go down the same to the waters of Grays Harbor; that defendants used the west bank of the river where plaintiffs' lands were located as the west wall of their boom, and the large number of logs accumulating in the river at and near plaintiffs' premises caused the water of the river to dam up and overflow plaintiffs' lands and endanger their home, and to prevent the use of the water for domestic purposes; that the maintenance and operation of the boom caused the banks of plaintiffs' land to be washed away; that such injury was continuous; and that the defendants used the said river, both opposite and below the plaintiffs' premises, for the storage of logs. Other allegations in relation to future damage, which would be incurred in the operation of the boom and driving companies, appear in the complaint. The facts found by the court, and which, from an investigation of the testimony, we will accept as the facts in the case, will more concisely divulge the allegations of the complaint, as they are based upon such allegations. The answer denies practically all the complaint, or that portion of it which alleged that damage was being done to the plaintiffs by reason of the operation of the booms, and further alleged that the defendants were corporations duly organized and existing by virtue of the laws of the state of Washington in relation to boom companies, and that, whatever they had done, they had the permission of the state of Washington and the United States government to do. And it may be said here that this is the pivotal question in the case, whether they had the permission of the state of Washington and of the United States government to do the things which it was found by the court they had done.

The court found, in substance, that the Grays Harbor Boom Company and the Humptulips Driving Company, defendants, were both corporations, organized and existing under the laws of the state of Washington, each having its principal office and place of business at Aberdeen, Wash., and that C. D. Burrows and A. P. Stockwell were, at all the dates mentioned in the complaint, and were at the time of the trial, the only stockholders and officers of each of said corporations. (Under this finding, the correctness of which is not disputed, we will not find it necessary to enter into a discussion of the different responsibilities of these two alleged different corporations.) Found that the plaintiffs were the owners of certain land adjoining the Humptulips river at the place alleged in the complaint; that the Humptulips river was a government meandered fresh-water stream, emptying into the waters of Grays Harbor; that it was navigable in its natural condition for small craft, and was floatable for many miles inland and through the plaintiffs' lands; that the average width of the river from the mouth to the north line of plaintiffs' lands was about 250 feet; that the water therein for that distance was of a depth of from 10 to 15 feet mean high water, and from 4 to 5 feet low water; that the water was suitable for domestic and live stock purposes in front of plaintiffs' premises and was used by them for domestic and live stock purposes from the date of their residence upon said premises until the acts of the defendants prevented them from so using them; that the water in said river in front of plaintiffs' premises was suitable for domestic and live stock purposes during the whole of the year, excepting during the months of July and August when it was slightly brackish; that the plaintiffs purchased these lands in the year _____, and thereafter erected on the west bank of said river on said premises a dwelling, consisting of 10 rooms, being a two-story frame building, and a barn, with the usual outhouses for wood, hogs, cattle, chickens, etc., and had cleared and put in cultivation about _____ acres of land in the vicinity of the house adjoining said river, and removed to such premises with their family, consisting of plaintiffs and their children, two boys and two girls, being from the age of 2 1/2 to 18 years; that they put out fruit trees and constructed fences upon said premises, and have kept, and did keep at the time of the trial, live stock consisting of cows and other cattle, hogs, horses, and chickens, all of which stock pastured and fed upon said premises and depended upon said river for fresh water for drinking purposes; that said live stock had no other way of getting water except by going down the west bank of said stream to the waters of said river; and that these plaintiffs purchased and improved said premises for a permanent home, and particularly because said premises abutted upon said river and public waterway; that the said river in its natural condition, unobstructed, constitutes a natural public highway for these plaintiffs, and the only public highway leading to and from their residence; that ever since about the 1st day of September, 1905, the defendants had caused said public waterway to be filled with sawlogs from bank to bank in front of plaintiffs' premises, and above the boom located there, and that said sawlogs had wholly obstructed said waterway to navigation in front of plaintiffs' premises during the whole of this period, except for a few days at a time not exceeding altogether the period of three weeks from the 1st day of September, 1905, to the date of the trial hereof (which was about the middle of March, 1906); that, by reason of such operations of the defendants, plaintiffs had been deprived of the use of the river for navigation and of their rights of ingress and egress, and many of said logs had rested or lain against the...