Carl v. West Aberdeen Land & Imp. Co.

• Decision Date: 07 February 1896
• Citation: 43 P. 890,13 Wash. 616
• Court: Washington Supreme Court
• Parties: CARL ET AL. v. WEST ABERDEEN LAND & IMPROVEMENT CO. ET AL.

43 P. 890

13 Wash. 616

CARL ET AL. v. WEST ABERDEEN LAND & IMPROVEMENT CO. ET AL.

Supreme Court of Washington

February 7, 1896

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by A. W. Carl, J. H. Harper, W. H. Honser, W. J. Thompson, E Hansen, F. Davidson, M. Gradl, G. M. Powell, and J. H Hastings against the West Aberdeen Land & Improvement Company and the Gray's Harbor & Neuskah Boom Company. Decree for plaintiffs, and defendants appeal. Affirmed.

Hogan & McGerry, for appellants.

J. C Cross, for respondents.

HOYT C.J.

The complainants were in lawful possession of lands situated on or near the river Neuskah in Chehalis county. From such lands they had cut and put into said river a large amount of saw logs. The only means of taking them to market was by way of said river which was of such a character as to make it easily practicable to float the logs down it. Near the mouth of said river defendants had erected a dam which entirely closed the channel. In the middle thereof was a gate, through which logs could be passed, one or two at a time. The logs in question were in the river at the time of the passage of the act relating to boom companies, approved March 18, 1895, and before the commencement of this action the defendant the Gray's Harbor & Neuskah Boom Company had placed its booms in the vicinity of said dam, and was engaged in the booming and rafting of logs, under the provisions of said act. These conditions were conceded to exist, and it was claimed by the plaintiffs that they were denied the right to pass their logs through the gate in this dam, and were prevented by said boom company and the other defendant, or their employés, from in any manner making use of the channel of the river for the purpose of floating their logs to market. On account of these alleged actions on the part of the defendants, it was sought by the plaintiffs to have the obstructions in the river abated as a nuisance, and also to procure a mandatory injunction compelling the defendants to allow the plaintiffs to make use of the channel of the river for the purpose of floating their logs to market. The superior court treated the action as one in equity, and granted the injunctive relief prayed for but refused to pass upon the question as to whether or not the obstructions were such that they should be abated as a nuisance; holding that the determination of that question should be in an action at law, where the right to a trial by jury was available.

The first claim for reversal is that the court erred in thus treating the action as one in equity. To sustain this claim it would be necessary not only to hold that sections 664, 665, Code Proc., made an action at law the only one available for the abatement of a nuisance, but also to hold that the fact that a nuisance could be so abated would prevent a court of equity from protecting the rights of a party which were infringed by conditions that might constitute a nuisance however inadequate might be the remedy of an action at law for the abatement of such nuisance. Such cannot be the construction which should be placed upon these sections; for, while it is probable that they furnish the only authority for the abatement of a nuisance at the suit of a private party, yet it should not be held that, by their enactment, a court of equity had been deprived of its jurisdiction to interfere when there is a remedy at law, when such remedy is entirely inadequate. Such facts were made to appear by the complaint and proofs that there could be no doubt as to the inadequacy of a suit at law to protect the rights of the plaintiffs. A large number of their logs were in the river ready to be taken to market, and their value would be greatly decreased before a suit at law for the abatement of the nuisance could be prosecuted to final determination. The river was a navigable one, and the right of the plaintiffs to make use of it in floating their logs to market was clear, and a clear right of this nature is entitled to the protection of a court of equity, unless the protection afforded by a court of law is clearly adequate. Under this assignment of error, it is further contended that the obstruction was a public one, but, even if it was, the plaintiffs showed that they were so situated that they had a special private interest in having it removed, so that they could pass their logs down the river, and for that reason were entitled to maintain their action for that purpose.

The next suggestion in the brief of appellants grows out of the alleged fact that the court, during the trial of the cause admitted evidence which would have been competent only in a suit to abate the obstruction as a nuisance, and in its final determination held that that question could only be decided in an action at law. But we are...