Cameron Lumber Co. v. Stack-Gibbs Lumber Co.
| Decision Date | 28 December 1914 |
| Citation | 26 Idaho 626,144 P. 1114 |
| Parties | CAMERON LUMBER CO., Appellant, v. STACK-GIBBS LUMBER CO., Respondent |
| Court | Idaho Supreme Court |
REHEARING-FORMER DECISION - JURISDICTION - SUFFICIENCY OF EVIDENCE-NAVIGABLE STREAM-SORTING WORKS-BOOMS-OBSTRUCTIONS TO THE NAVIGATION OF PUBLIC STREAMS.
1. Granting a rehearing of a case does not ipso facto reverse a former decision, but it is suspended by the order of rehearing.
2. Where a rehearing is granted and the court fails to agree upon a decision in the case, it does not lose jurisdiction and under section 3820, Rev. Codes, another hearing must be ordered.
3. Where there is a substantial conflict in the evidence, this court will not undertake to weigh the proof to ascertain which side has the preponderance, and where there is such conflict in the evidence, it will not disturb the findings of the trial court.
4. The navigable streams of this state are public highways, over which every citizen has a right to carry commerce in such manner and by such means as are best adapted to serve the purposes of the business in which he is engaged, but in doing this he must have due consideration and reasonable care for the rights of others to a like use of the waters of such stream.
5. Where booms and sorting works for logs placed in the river do, to some extent, form a hindrance to the free navigation of the river at times, such hindrance should be considered only an incident to the reasonable use of the stream for floating and securing logs.
6. For such purpose and as incident to the reasonable use of the river for running and securing logs, parties may use temporary sheer or guide booms to direct the logs or lumber into proper places into which to detain them for use.
7. If an obstruction merely impairs or renders more difficult the navigation of a stream without destroying it, an individual has no right for cause of complaint, because he has no right to insist upon the best possible accommodation.
APPEAL from the District Court of the Eighth Judicial District for the County of Kootenai. Hon. Robert N. Dunn, Judge.
Action in equity by the plaintiff corporation, the owner of certain booms and sorting works near the mouth of Coeur d'Alene river, to enjoin the defendant, also the owner of certain booms and sorting works at the mouth of said river, from maintaining and operating said booms and sorting works. Judgment was entered in favor of defendant, and from this judgment and an order overruling a motion for a new trial plaintiff appealed. Judgment affirmed.
Judgment of the lower court affirmed. Costs awarded to the respondent.
McFarland & McFarland, for Appellant.
The granting of the rehearing did not set aside the decision rendered by Justices Ailshie and Stewart, reversing the judgment of the court below. It stands to reason that the decision of this court, reversing the judgment of the lower court, still stands. (Ashley v. Hyde, 6 Ark. 92, 42 Am. Dec. 685; Rawdon v. Rapley, 14 Ark. 203, 58 Am Dec. 370; Morrow v. Weed, 4 Iowa 77, 66 Am. Dec. 122; Hauser v. Hobart, 22 Idaho 749, 127 P. 1002, 43 L. R. A., N. S., 410.)
An equal division of the court on a motion for rehearing, of a judgment of reversal previously rendered, leaves that judgment in force, and does not result in affirming the judgment of the lower court. (Carmichael v. Eberle, 177 U.S. 63, 20 S.Ct. 571, 44 L.Ed. 672.)
Where the waters of a navigable river are so used as to deprive a riparian holder of all access to the river from the land, or to the land from the river, or so as to injure the benefits or enjoyment of the riparian land or the business thereon, such use may be enjoined. (Ferry Pass Inspectors' & Shippers' Assn. v. White River Inspectors' & Shippers' Assn., 57 Fla. 399, 48 So. 643, 22 L. R. A., N. S., 345; Smart v. Aroostook Lumber Co., 103 Me. 37, 68 A. 527, 14 L. R. A., N. S., 1083; Reyburn v. Sawyer, 135 N.C. 328, 102 Am. St. 555, 47 S.E. 761, 65 L. R. A. 930; Powell v. Springston Lumber Co., 12 Idaho 723, 88 P. 97; Hobart Lee Tie Co. v. Stone, 135 Mo.App. 438, 117 S.W. 604; Union Mill Co. v. Shores, 66 Wis. 476, 29 N.W. 243.)
The only right that the Stack-Gibbs Lumber Co. had on the river between the lands of appellant was the right of navigation, but that right, though it gives the right to raft logs down the river, does not involve the right of booming them upon private property for safekeeping and storage, any more than the right to travel the highways justifies the leaving of wagons standing in front of private dwellings or stores. (Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435; Watkinson v. McCoy, 23 Wash. 372, 63 P. 245; Reeves v. Backus-Brooks Co., 83 Minn. 339, 86 N.W. 337; Shephard v. Coeur d'Alene Lbr. Co., 16 Idaho 293, 101 P. 591; La Veine v. Stack-Gibbs Lumber Co., 17 Idaho 51, 134 Am. St. 253, 104 P. 666.)
E. R. Whitla and Voorhees & Canfield, for Respondent.
As a part of its appellate jurisdiction, the court may order a cause resubmitted for further argument, whenever it feels that it needs further light, or deems, for any reason, such rehearing necessary to a just decision.
"The power to grant rehearings is inherent--is an essential ingredient of jurisdiction, and ends only with the loss of jurisdiction," (In re Jessup, 81 Cal. 408, 21 P. 976, 22 P. 742, 1028, 6 L. R. A. 594; Fair v. Angus, 6 Cal. Unrep. 283, 57 P. 385; Mateer v. Brown, 1 Cal. 231; Grogan v. Ruckle, 1 Cal. 193; Hasted v. Dodge (Iowa), 39 N.W. 668.)
When the original order for rehearing was made, the opinion previously delivered became nugatory and without further force and effect, unless put into operation again by a subsequent order of this court.
Respondent had the right to erect booms and works over the bed of the river or lake, wherever necessary to a reasonable enjoyment of the right of transportation of logs over the river, even though such bed had been owned by appellant. (Small v. Harrington, 10 Idaho 499, 79 P. 461; Powell v. Springston Lbr. Co., 12 Idaho 723, 730, 88 P. 97; Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L. R. A., N. S., 1240; Idaho Northern R. Co. v. Post Falls Lumber & Mfg. Co., 20 Idaho 695, 119 P. 1098, 38 L. R. A., N. S., 114; Mashburn v. St. Joe Improvement Co., 19 Idaho 30, 113 P. 92, 35 L. R. A., N. S., 824; Gaston v. Mace, 33 W.Va. 14, 25 Am. St. 848, 10 S.E. 60, 5 L. R. A. 392; Weise v. Smith, 3 Ore. 445, 8 Am. Rep. 621; Harold v. Jones, 86 Ala. 274, 5 So. 438, 3 L. R. A. 406; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573; Brown v. Kentfield, 50 Cal. 129; Lancey v. Clifford, 54 Me. 487, 92 Am. Dec. 561.) If any inconvenience or damage falls upon the appellant thereby, the appellant cannot complain, and it is damnum absque injuria. (Small v. Harrington, supra; Northern R. Co. v. Post Falls Lumber & Mfg. Co., supra; Attorney General v. Evart Booming Co., 34 Mich. 462; Gaston v. Mace, supra.)
It is necessary to float logs clear into the mouth of the river in order to reasonably enjoy the use of the Coeur d'Alene river.
(1 Farnham on Waters and Water Rights, p. 426, par. 94; Powell v. Springston Lumber Co., supra.)
Where there is a substantial conflict in the evidence, the findings of the lower court are taken as conclusive. (Robbins v. Porter, 12 Idaho 738, 88 P. 86; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Deeds v. Stephens, 10 Idaho 332, 79 P. 77; Abbott v. Reedy, 9 Idaho 577, 75 P. 764; Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Pine v. Callahan, 8 Idaho 684, 71 P. 473; Sabin v. Burke, 4 Idaho 28, 37 P. 352; Miller v. Blunck, 24 Idaho 234, 133 P. 383.)
"Temporary sheer or guide booms, though obstructions to navigation, may be used, as incident to the reasonable use of a river for running and securing logs, for the purpose of directing the logs or lumber into proper places in which to detain them for use; but the stream may not be permanently obstructed and converted into permanent places of deposit for logs by the construction of piers and booms." (Gerrish v. Brown, 51 Me. 256, 81 Am. Dec. 569; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573.)
"Every person has an undoubted right to use a public highway, whether upon the land or water, for all legitimate purpose of travel and transportation; and if, in doing so, while in the exercise of ordinary care, he necessarily and unavoidably impede or obstruct another temporarily, he does not thereby become a wrongdoer, his acts are not illegal, and he creates no nuisance for which an action can be maintained." (Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573.)
This action was brought in the lower court by the appellant, a corporation, the owner of certain booms and sorting works near the mouth of the Coeur d'Alene river, to enjoin the respondent, a corporation, and also the owner of other certain booms and sorting works at the mouth of said river below appellant's works, and in Lake Coeur d'Alene, adjacent to its said sorting works, from maintaining and operating said booms and sorting works.
The first question presented to this court is raised by appellant's objection to a rehearing of the case, and upon his motion that a remittitur reversing the judgment of the lower court herein be sent down and transmitted to the clerk of said court. The grounds and reason for such objection and motion are...
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