Dufur v. Lewis River Boom & Logging Co.

• Decision Date: 15 January 1916
• Docket Number: 12692.
• Citation: 154 P. 463,89 Wash. 279
• Court: Washington Supreme Court
• Parties: DUFUR v. LEWIS RIVER BOOM & LOGGING CO.

154 P. 463

89 Wash. 279

DUFUR v. LEWIS RIVER BOOM & LOGGING CO.

No. 12692.

Supreme Court of Washington

January 15, 1916

Department 2. Appeal from Superior Court, Cowlitz County; William T Darch, Judge.

Action by George C. Dufur against the Lewis River Boom & Logging Company. From a judgment dismissing his action, plaintiff appeals. Affirmed.

B. L. Hubbell, of Kelso, for appellant.

Miller & Wilkinson, of Vancouver, for respondent.

FULLERTON J.

The appellant brought this action against respondent, stating his cause as follows:

'I. That the defendant is now, and was at all times hereinafter alleged and mentioned, a corporation doing business under and by virtue of the laws of the state of Washington, and was at said times a public service corportion, organized for the purpose of driving, sacking sorting, rafting, and booming logs and other timber products and was engaged in operating a boom at the mouth of the Lewis river in the county of Cowlitz and state of Washington at the confluence of said Lewis river with the Columbia river.

'II. That during the times herein mentioned the Kalama Lumber, Log & Timber Company was a corporation, organized and doing business under and by virtue of the laws of the state of Washington, and engaged in lumbering in Cowlitz county Wash.

'III. That between the 1st day of September, 1907, and the 23d day of February, 1912, the said Kalama, Lumber, Log & Timber Company placed in the Lewis river and floated to the rafting and booming grounds of defendant, at the mouth of the said Lewis river, 3,855,454 feet of logs.

'IV. That it became and was the duty of defendant to catch and hold, assort and raft, said logs, and to account therefor to the owners thereof; that defendant rafted and accounted for 2,223,068 feet of said logs so floated to said rafting grounds by the said Kalama Lumber, Log & Timber Company.

'V. That of said 3,855,454 feet of logs so floated to the rafting and booming grounds of defendant said defendant failed to catch and hold, assort, boom, and raft 1,632,386 feet, and has utterly failed to account therefor, though demand has been made therefor; that said logs were of the value of $9 per thousand feet, and plaintiff is damaged by defendant's failure to so catch and hold, assort, boom, and raft said 1,632,386 feet, in the sum of $14,688.61.

'VI. That plaintiff has no knowledge or belief as to what disposition was made of said logs by defendant, and is unable to allege whether said logs were converted by defendant or lost; that plaintiff has been informed and believes that defendant failed to catch and hold a portion thereof, and allowed a portion thereof to escape from its booms, but plaintiff is not informed as to what amount defendant failed to catch and hold, and what amount was allowed to escape from defendant's booms, and is unable to allege said amounts; that defendant has informed plaintiff that it has none of said logs in its possession.

'VII. That heretofore, to wit, on the 4th day of January, 1912, the said Kalama Lumber, Log & Timber Company duly assigned the said claim and cause of action against defendant to plaintiff herein.'

To the complaint the respondent interposed a demurrer on the grounds: (1) That the complaint did not state facts sufficient to constitute a cause of action; and (2) that the action was not commenced within the time limited by law. At the hearing had upon the demurrer the trial court sustained the same, entering a general order to that effect without specifying upon which of the grounds stated in the demurrer the order was rested, and granting to the appellant 10 days within which to amend his complaint. Thereafter the appellant gave notice that he refused to plead further, and that he elected to stand upon the complaint, whereupon the court entered a judgment against him, dismissing his action, with costs. This appeal is from the judgment so entered.

The action, it will be observed, is founded upon the so-called booming and driving statutes of the state. The statute of 1889-90 provides for the organization of corporations for the purposes of catching, booming, sorting, rafting, and holding logs and other timber products, and empowers such corporations, when so organized, to go upon any of the 'waters of the state or the dividing waters thereof,' and to construct and maintain the necessary booms and other works for the purposes mentioned. It further provides that when such works are constructed the corporation shall catch, boom, sort, raft, and hold the logs and timber products of all persons requesting such service, and, when the works are erected at the mouth of any river, the logs and timber products which shall come to the works not in charge of the owner, without such request; reasonable tolls being provided for the services. Laws 1889-90, p. 470. In 1895 (Laws 1895, p. 128) the Legislature provided for the organization and incorporation of companies for the purposes of clearing out and improving rivers and streams and for driving logs and other timber products thereon. The act empowered any such corporation to enter upon any of the rivers and streams of the state, or the dividing waters thereof, and remove jams, roots, snags, and rocks therefrom straighten the channel of such streams, build wing dams and sheer booms thereon,...