Dawson v. McMillan

• Decision Date: 11 March 1904
• Citation: 34 Wash. 269,75 P. 807
• Parties: DAWSON et al. v. McMILLAN et al.
• Court: Washington Supreme Court

75 P. 807

34 Wash. 269

DAWSON et al. v. McMILLAN et al.

Supreme Court of Washington

March 11, 1904

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Suit by W. A. Dawson and another against J. B. McMillan and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Elihu R. Sherman and C. H. Hurlbut, for appellants.

T. E Cade and Smith & Brawley, for respondents.

MOUNT J.

Plaintiffs brought this action for an injunction restraining defendants from obstructing navigation in the branch of the sea known as 'McElroy's Slough,' and for a mandate requiring the removal of such obstruction already made by defendants. After issues joined and a trial had, the lower court granted the relief prayed for. The defendants appeal.

No question is made here on the findings of the lower court, and they are therefore to be taken as true. They are as follows:

'(1) That at all of the times in plaintiffs' complaint mentioned and hereinafter mentioned the plaintiffs have been and now are copartners doing business under the firm name and style of W. A. Dawson & Co.; that during said times the said defendant Union Boom Company has been and now is a corporation duly organized and existing under and by virtue of the laws of the state of Washington, having its principal place of business at Rairhaven, Whatcom county, Washington, and that during and times the defendants J. B. McMillan and Frances C. McMillan have been and now are husband and wife.

'(2) That plaintiffs are the owners of a large quantity of timber lands lying along and adjacent to a certain slough in Skagit county, Washington, commonly called 'McElroy's Slough,' which said slough enters into Bellingham Bay, the same being an arm of Puget Sound which said slough so enters said Bellingham Bay west of lots 1 and 2 in Sec. 21, Tp. 36 north, range 3 east of the Willamette meridian, in said Skagit county, and which said slough extends back in length about 4 miles from the mouth of said slough through sections 21 and 22, and that there is a channel the same being well defined, and about 3 to 4 feet in depth, extending from the mouth of said slough out into said Bellingham Bay for a distance of 1 1/2 miles; that said channel is from 70 to 100 feet in width, and that down this channel there is constantly flowing a channel of fresh water averaging during the year from 4 to 24 inches in depth at the deepest, and from 20 1/2 feet to 40 feet in width; that twice each day the tide ebbs and flows up said channel and slough and over portions of the tide flats to a depth of from 7 to 9 feet, and which tide covers all the flats surrounding said slough; that while the said tide is in, and while so flowing and ebbing, the said channel and slough is navigable, and has been and can be used as a public highway for boats, scows, and other ordinary modes of water transportation for general commercial purposes, and especially for the rafting, booming, and floating and towing of logs up and down the same; that said slough has been so used for at least twenty years prior to the time of the commission of the acts complained of by plaintiffs in their complaint.

'(3) That sufficient fresh water does not flow down said slough at any time to keep it navigable or floatable with the fresh water alone, but that said slough is only navigable and floatable with the aid of the salt water, and that at ordinary low tide there is not salt water in said slough.

'(4) That the plaintiffs at and for two years prior to the commencement of this action were engaged in logging off their said lands, which lands are adjacent to said slough, and that they have been taking the timber from said land, placing the same in said slough, there rafting and placing them in sections ready for market in the usual manner practiced by loggers, and towing the same down said slough and into said Bellingham Bay, and thence to market; that plaintiffs have no other feasible or practicable way by which the plaintiffs can convery their said timber to the market only down said slough and channel; and that plaintiffs are the owners of a large quantity of standing timber, to wit, about 4,000,000 feet, on their said lands, for which there is no other outlet or way to market save and except down said slough and channel.

'(5) That on or about the 11th day of February, 1903, the defendants Union Boom Company and J. B. McMillan procured a pile driver and piles, and with the aid of such pile driver and piles they drove piles in the said channel as shown by the plaintiffs' Exhibit No. 1, to wit, a row of piles along the south bank of said channel, and other piles in the center of said channel, which piling so driven by defendants was driven into the ground permanently, and is a permanent obstruction to navigation of said slough and channel, and deprives plaintiffs of the use of said slough and channel for the purpose of towing their logs down the same to market, and hinders and destroys navigation in said slough and channel, and that by reason of the location and manner in which said piles were so driven in the bed of said slough and channel hereinbefore described the said plaintiffs have been and now are unable to get any of their said logs to market, and that, if the said piling is allowed to remain there, plaintiffs will be unable to and will be prohibited from logging off their said lands or to remove the products of said lands and timber to market, and that it will be impossible for boats to navigate said slough.

'(6) That some time during the year 1902, and prior to the driving of said piles into said slough by defendants as aforesaid, a line of railway was constructed a few feet east of where said piles were so driven, and a railway bridge was constructed across said slough; that the piles which are in the fresh-water channel and nearest said bridge are opposite the bents of the said bridge, and that any logs or other timber products, boats, and scows that can go under the said railway bridge can float down the fresh-water channel of said slough without obstruction on account of the piles driven by defendants; that the openings under the railroad bridge through which the fresh water flows down through said slough are 21 feet and 15 feet in...